MINERAL LOCATION 

ANNOTATED 


United States, California, Oregon, 

Nevada, Arizona. 


SYLLABI OF LEADING DECISIONS 


COMPILED BY 

CHAS. L. REYNOLDS 

• CIVIL AND MINING ENGINEER, 
UNITED STATES MINERAL SURVEYOR 

{or Oregon, California, Nevada and Arizona 

METROPOLIS TRUST BLDG. 

SAN FRANCISCO, CAL. 



PCICE, $1.00 PAPED; $1.50 CLOTH 
















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MINERAL LOCATION 


ANNOTATED 


United 


California, 




Nevada, Arizona 


SYLLABI OF LEADING DECISIONS 


COMPILED BY 


CHAS. L. REYNOLDS 

\ ' 


Civil and Mining Engineer, 
United States Mineral Surveyor, 

FOR Oregon, California, Nevada and Arizona. 

Metropolis Trust Building, 

San Francisco, Cal. 


PRICE, gl.OO PAPER; SI.50 CLOTH 






LIBRARY of CONGRESS 
Two Copies Received 

OCT 24 1908 

Copyright Entry 

0<3L.\3,\4D‘J 

CLASS a_- XXc. No. 


Copyright 1908, By Charles L. Reynolds 


SAN FRANCISCO. CAL: 


DETTNER PRINTING PRESS 

1908 






1 


CONTENTS. 


United States Mining Laws. 

Regulations of General Land Office. 

Discovery. 

I.ocation and Record. 

Boundaries. 

Annual Labor. 

Apex. 

Placers . 

Tunnel Sites. 

Millsite. 

Agent. 

Water. 

Aliens. 

United States Mineral Surveyor. 

Syllabi—Discovery. 

“ Location and Record. 

“ Boundaries. 

“ Annual Labor. 

“ Apex. 

“ Placers. 

“ Tunnel Sites. 

‘‘ Millsite. 

“ Agent. 

“ Water. 

“ Aliens. 

“ United States Mineral Surveyor 

California Location. 

Arizona Location. 

Nevada Location. 

Oregon Location. 


12 

20 

20 

22 

23 

24 

25 

27 

28 

29 

30 

30 

31 
33 
35 
39 
41 
44 
48 
53 
55 

57 

58 
60 
61 

64 

65 

66 
69 


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PREFACE 


Probably no business is as fruitful a source of expensive and tiresome 
litigation as mining. The very order of things is conducive to this. The 
primary, possessory title is usually acquired by a rough miner, or pros¬ 
pector, who lacks the technical knowledge for enclosing a hidden vein 
with boundaries that will best safeguard his future interests. 

On making a discovery, he proceeds to locate his claim, doing only 
that which he deems essential, such as a little mining work, staking out 
his ground and posting and recording his notice. Sometimes this is 
done properly, but more often it is not. Later the claim is worked, 
the property becomes valuable, and then the trouble begins. 

On acquiring an unpatented mining property a survey is generally 
called for. This survey too often is simply a measurement from stake 
to stake and the setting back of one corner to gain parallelism of the 
end lines. Secure in the safety of this survey, mining is proceeded with. 
Later the' encroachments of adjoining claims begin to be felt; there is 
a possible loss in extralateral rights and every mistake in the preliminary 
location is experienced in the loss of money, time, and patience. Pos-. 
sibly, a little wedge was left on the surface; this little wedge may be 
made to expand with depth, taking in the pay chute itself; a water right 
should have been secured, or a mill site; a piece of apparently worthless 
ground has to be purchased for convenience, and so on without end. 

In the first place this is all unnecessary and uncalled for, as an 
engineer after surveying and plotting should foresee these troubles and 
correct them before it is too late. An amendment in one place, extend¬ 
ing a side line only a few feet, might, if the strike were later found 
to cross the claim, mean the difference between a valuable and worthless 
piece of property: that is the engineer’s business; if he does not know 
how to correct these matters he is useless for the purpose, as any one 
with the slightest knowledge of measurement, given a compass and a 
tape, would have done as well so far as any economic purpose was 
concerned. Recollect that a mining survey is a different proposition from 
running lines and setting up corners. It should include, with other mat¬ 
ters, a general knowledge of the mining laws and their intricacies and 
the legal methods of overcoming existent mistakes. 

In the writer’s personal experience most of the mining litigation he 
has observed could have been prevented if the original manager or 
engineer had known and rectified the mistakes of the locator and taken 
advantage of his statutory privileges. 

All too frequently the engineer goes into the field equipped with first- 
class instruments, a high grade of technical skill in measurement, but 
with -a total lack of knowledge of the main essential for the work he 
is to undertake. 

Mining-location law is not a matter to be picked up lightly, but 
requires study and, essentially, experience. 

That this little book may tend to correct many misconceptions and serve 
the purpose for which it was written is the author’s earnest wish. 

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UNITED STATES MINING LAWS 

AND 

REGULATIONS THEREUNDER 


Title xxxii^ Chapter 6 , Revised Statutes. 

MINERAL LANDS AND MINING RESOURCES. 

Sec. 2318. In all cases lands valuable for minerals shall^^^^^^“^^J^^ lands 

be reserved from sale, except as otherwise expressly directed——- 

by law. 4 

Sec. 2319. All valuable mineral deposits in lands be- Mineral lands 

1- iTT-i(-. 11^ open to purchase 

longing to the United States, both surveyed and unsur-by citizens, 
veyed, are hereby declared to be free and open to explora- lo May, i 872 . 
tion and purchase, and the lands in wTich they are found 
to occupation and purchase, by citizens of the United 
States and those who have declared their intention to 
become such, under regulations prescribed by lawy and 
according to the local customs or rules of miners in the 
several mining districts, so far as the same are applicable 
and not inconsistent with the laws of the United States. 

Sec. 2320. Mining claims upon veins or lodes of quartz. Length ^of min¬ 
or other rock in place bearing gold, silver, cinnabar, lead,vefns^or”hDde^^^^^ 
tin, copper, or other valuable deposits, heretofore located, lo May i 872 . 
shall be governed as to length along the vein or lode by 
the customs, regulations, and laws in force at the date of 
their location. A mining claim located after the tenth 
day of May, eighteen hundred and seventy-two, whether 
located by one or more persons, may equal, but shall not 
exceed, one thousand five hundred feet in length along the ' 

vein or lode; but no location of a mining claim shall be 
made until the discovery of the vein or lode within the 
limits of the claim located. No claim shall extend more 
than three hundred feet on each side of the middle of the 
vein at the surface, nor shall any claim be limited by any 
mining regulation to less than twxnty-five feet on each side 
of the middle of the vein at the surface, except where 
adverse rights existing on the tenth day of May, eighteen 
hundred and seventy-two, render such limitation neces- 


5 






sary. I'he end lines of eacli claim shall be parallel to 
each other. 


Proof of citi- Sec. 2321. Proof of citizenship, under this chapter, 

_-may consist, in the case of an individual, of his own affi- 

10 Ma>, 1872. thereof; in the case of an association of persons 

unincorporated, of the affidavit of "their authorized agent, 
made on his own knowledge or upon information and belief; 
and in the case of a corporation organized under the laws 
of the United States, or of any State or Territory thereof, 
by the filing of a certified copy of their charter or cer¬ 
tificate of incorporation. 


Locators’ rights 2322. The locators of all mining locations hereto- 

of possession and,. , i i i i i i 

enjoyment. tore made or which shall hereafter be made, on any min- 
loUuay, 1872 . vein, lode, or ledge, situated on the public domain, 
their heirs and assigns, where no adverse claim exists on 
the tenth day of May, eighteen hundred and seventy-two, 
so long as they comply with the laws of the United States, 
and with State, Territorial, and local regulations not in 
conflict with the laws of the United States governing 
their possessory title, shall have the exclusive right of 
possession and enjoyment of all the surface included within 
the lines of their locations, and of all veins, lodes, and 
ledges throughout their entire depth, the top or apex of 
which lies inside of such surface lines extended downward 
vertically, although such veins, lodes, or ledges may so 
far depart from a perpendicular in their course downward 
as to extend outside the vertical side lines of such surface 
locations. But their right of possession to such outside 
parts of such veins or ledges shall be confined to such 
portions thereof as lie between vertical planes drawn down¬ 
ward as above described, through the end lines of their 
locations, so continued in their own direction that such 
planes will intersect such exterior parts of such veins or 
ledges. And nothing in this section shall authorize the 
locator or possessor of a vein or lode which extends in its 
downward course beyond the vertical lines of his claim 
to enter upon the surface of a claim owned or possessed 
by another. 


Owners of tun¬ 
nels, rights of. 


10 May, 1872. 


Sec. 2323. Where a tunnel is run for the development 
-of a vein or lode, or for the discovery of mines, the own¬ 
ers of such tunnel shall have the right of possession of all 
veins or lodes within three thousand feet from the face 
of such tunnel on the line thereof, not previously known 
to exist, discovered in such tunnel, to the same extent as 
if discovered from the surface; and locations on the line 
of such tunnel of veins or lodes not appearing on the sur¬ 
face, made by other parties after the commencement of 
the tunnel, and while the same is being prosecuted with 
reasonable diligence, shall be invalid, but failure to prose¬ 
cute the work on the tunnel for six months shall be con¬ 
sidered as an abandonment of the right to all undiscovered 
veins on the line of such tunnel. 


6 





10 May, 1872. 


Sec. 2324. The miners of each mining district may K e guiations 
make regulations not m conflict with the laws of the United- 
States, or with the laws of the -S.tate or Territory in 
which the district is situated, governing the location, man¬ 
ner of recording, amount of work necessary to hold pos¬ 
session of a mining claim, subject to the following require¬ 
ments : The location must be distinctly marked on the 
ground so that its boundaries can be readily traced. All 
records of mining claims hereafter made shall contain the 
name or names of the locators, the date of the location, 
and such a description of the claim or claims located by 
reference to some natural object or permanent monument 
as will identify the claim. On each claim located after 
the tenth day of May, eighteen hundred and seventy-two, 
and until a patent has been issued therefor, not less than 
one hundred dollars’ worth of labor shall be performed 
or improvements made during each year. On all claims 
located prior to the tenth day of May, eighteen hundred 
and seventy-two, ten dollars’ worth of labor shall be per¬ 
formed or improvements made by the tenth day of June, 
eighteen hundred and seventy-four, and each year there¬ 
after, for each one hundred feet in length along the vein 
until a patent has been issued therefor; but where such 
claims are held in common, such expenditure may be made 
upon any one claim; and upon a failure to comply with 
these conditions the claim or mine upon which such fail¬ 
ure occurred shall be open to relocation in the same manner 
as if no location of the same had ever been made, provided 
that the original locators, their heirs, assigns, or legal 
representatives, have not resumed work upon the claim 
after failure and before such location. Upon the failure 
of any one of several co-owners to contribute his propor¬ 
tion of the expenditures required hereby, the co-owners 
who have performed the labor or made the improvements 
may, at the expiration of the year, give such delinquent 
co-owner personal notice in writing or notice by publica¬ 
tion in the newspaper published nearest the claim for at 
least once a week for ninety days, and if at the expira¬ 
tion of ninety days after such notice in writing or by pub¬ 
lication such delinquent should fail or refuse to contribute 
his proportion of the expenditure required by this section 
his interest in the claim shall become the property of his 
co-owners who have made the required expenditures. 


Sec. 2325. A patent for any land claimed and located f a t e n t s for 
for valuable deposits may be obtained m the lollowmghow obtained, 
manner: Any person, association, or corporation author- jq is72. 
ized to locate a claim under this chapter, having claimed 
and located a piece of land for such purposes, who has, 
or have, complied with the terms of this chapter, may 
file in the proper land office an application for a patent, 
under oath, showing such compliance, together with a plat 
and field notes of the claim or claims in common, made by 


7 




or under the direction of the United States surveyor- 
general, showing accurately the boundaries of the claim or 
claims, which shall be distinctly marked by monuments on 
the ground, and shall post a copy of such plat, together 
with a notice of such application for a patent, in a con¬ 
spicuous place on the land embraced in such plat previous 
to the filing of the application for a patent, and shall file 
an affidavit of at least two persons that such notice has 
been' duly posted, and shall file a copy of the notice in 
such land office, and shall thereupon be entitled to a patent 
for the land, in the manner following: The register of the 
land office, upon the filing of such application, plat, field 
notes, notices, and affidavits, shall publish a notice that 
such application has been made, for the period of sixty 
days, in a newspaper to be by him designated as published 
nearest to such claim; and he shall also post such notice 
in his office for the same period. The claimant at the 
time of filing this application, or at any time thereafter, 
within the sixty days of publication, shall file with the 
register a certificate of the United States surveyor-general 
that five hundred dollars’ worth of labor has been expended 
or improvements made upon the claim by himself or 
grantors; that the plat is correct, with such further 
description by such reference to natural objects or per¬ 
manent monuments as shall identify the claim, and fur¬ 
nish an accurate description to be incorporated in the 
patent. At the expiration of the sixty days of publication 
the claimant shall file his affidavit, showing that the plat 
and notice have been posted in a conspicuous place on the 
claim during such period of publication. If no adverse 
claim shall have been filed with the register and the 
receiver of the proper land office at the expiration of the 
sixty days of publication, it shall be assumed that the 
applicant is entitled to a patent, upon the payment to the 
proper officer of five dollars per acre, and that no adverse 
claim exists; and thereafter no objection from third par¬ 
ties to the issuance of a patent shall be heard, except it 
be shown that the applicant has failed to comply with the 
terms of this chapter. 

Description of Sec. 2327. The description of vein or lode claims upon 
lode'^clainTs^*” °*‘surveyed lands shall designate the location of the claims 

To l^ay reference to the lines of the public survey, but need 

amended Apr. 28, ’not conform therewith; but where patents have been or 
shall be issued for claims upon unsurveyed lands, the 
surveyors-general, in extending the public survey, shall 
adjust the same to the boundaries of said patented claims 
so as in no case to interfere with or change the true loca¬ 
tion of such claims as they are officially established upon 
for^^^"to ground. Where patents have issued for mineral lands, 

monuments. those lands only shall be segregated and shall be deemed 
to be patented which are bounded by the lines actually 
marked, defined, and established upon the ground by the 


8 



monuments of the official survey upon which the patent 
grant is based, and surveyors-general in executing subse¬ 
quent patent surveys, whether upon surveyed or unsurveyed 
lands, shall be governed accordingly. The said monuments Monuments to 
shall at all times constitute the highest authority as to whatfionl.^ ^ descnp- 
land is patented, and in case of any conflict between the 
said monuments of such patented claims and the descrip¬ 
tions of said claims in the patents issued therefor the 
monuments on the ground shall govern, and erroneous or 
inconsistent descriptions or calls in the patent descriptions 
shall give way thereto. 


Sec. 2329. Claims usually called “placers,” includingpj^^®”^®^]^-^^ 
all forms of deposit, excepting veins of quartz, or othersurveys, limit of. 
rock in place, shall be subject to entry and patent, under 9 juiy, i 870 . 
like circumstances and conditions, and upon similar pro¬ 
ceedings, as are provided for vein or lode claims; but 
w’here the lands have been previously surveyed by the 
United States, the entry in its exterior limits shall con¬ 
form to the legal subdivisions of the public lands. 


Sec. 2330. Legal subdivisions of forty acres mav be. Subdivisions of 
subdivided into ten-acre tracts; and two or more persons,maximum of pia- 

or associations of persons, having contiguous claims of_ 

any size, although such claims may be less than ten acres ^ i870. 

each, may make joint entry thereof; but no location of a 
placer claim, made after the ninth day of July, eighteen 
hundred and seventy, shall exceed one hundred and sixty 
acres for any one person or assocfation of persons, which 
locatVm shall conform to the United States surveys; ard 
nothing in this section contained shall defeat or impair 
any bona fide preemption or homestead claim upon agri¬ 
cultural lands, or authorize the sale of the improvements 
of any bona fide settler to any purchaser. 


Sec. 2331. Where placer claims are upon surveyed lands, Conformity of 
and conform to legal subdivisions, no further survey orsurveys, limitation 

plat shall be required, and all placer-mining claims located^lLlfl^^!!:_ 

after the tenth day of May, eighteen hundred and seventy- 
two, shall conform as near as practicable with the United 
States system of public-land surveys, and the rectangular 
subdivision of such surveys, and no such location shall 
include more than twenty acres for each individual 
claimant; but where placer claims can not be conformed 
to legal subdivisions, survey and plat shall be made as 
on unsurveyed lands; and where by the segregation of 
mineral lands in any legal subdivision a quantity of agri¬ 
cultural land less than forty acres remains, such fractional 
portion of agricultural land may be entered by any party 
qualified by law, for homestead or preemption purposes. 


Sec. 2336. Where two or more veins intersect or cross^ Where veins in 

tcrscct 

each other, priority of title shall govern, and such prior_!_1___ 

location shall be entitled to all ore or mineral contained ^^^2. 


9 







within the space of intersection; l)ut the subsequent loca¬ 
tion shall have the right of way through the space of 
intersection for the purposes of the convenient working of 
the mine. And where two or more veins unite, the oldest 
or prior location shall take the vein below the point of 
union, including all the space of intersection. 


Patents for non- 2337. Where nonmineral land not contiguous to 

mineral lands, &c. *111 • r 

-the vein or lode is used or occupied by the proprietor or 

■ such vein or lode for mining or milling purposes, such 
nonadjacent surface ground may be embraced and included 
in an application for a patent for such vein or lode, 
and the same may be patented therewith, subject to the 
same preliminary requirements as to survey and notice as 
are applicable to veins or lodes; but no location here¬ 
after made of such nonadjacent land shall exceed five 
acres, and payment for the same must be made at the 
same rate as fixed by this chapter for the superficies of the 
lode. The owner of a quartz mill or reduction works, not 
owning a mine in connection therewith, may also receive 
a patent for his mill site, as provided in this section. 


Entry and pat- Be it enacted by the Senate and House of Representatives 
contafning petroW United States of America in Congress assembled, 
mhieraf" oils persoii authorized to enter lands under the min¬ 

der the piacer-ing laws of the United States may enter and obtain patent 

mining aws._ laiids Containing petroleum or other mineral oils, and 

approved valuable therefor-, under the provisions of the laws 

1897. ’relating to placer mineral claims; Provided, That lands 

containing such petroleum or other mineral oils which have 
heretofore been filed upon, claimed, or improved as min¬ 
eral, but not yet patented, may be held and patented under 
the provisions of this act the same as if such filing, claim, 
or improvement were subsequent to the date of the pas¬ 
sage hereof. 


minerS'^^o^” Upoii the recommeiidation of the Secretary of the Inte- 
cuiturai lands torior, with the approval of the President, after sixty days’ 
the public domain. thereof, published in two papers of general circu¬ 
lation in the State or Territory wherein any forest reserva¬ 
tion is situated, and near the said reservation, any public 
lands embraced within the limits of any forest reservation 
Act June 4 ,which, after due examination by personal inspection of a 
competent person appointed for that purpose by the Sec¬ 
retary of the Interior, shall be found better adapted for 
mining or for agricultural purposes than for forest usage, 
may be restored to the public domain. And any mineral 
lands in any forest reservation which have been or which 
may be shown to be such, and subject to entry under the 
existing mining laws of the United States and the rules 
and regulations applying thereto, shall continue to be sub¬ 
ject to such location and entry, notwithstanding any pro- 
’ visions herein contained. 


10 





Be it enacted by the Senate and House of Rebresenta- 

, , ^ ^ , extended to saline 

tives of the United States of America in Congress assembledj\and5. 

That all unoccupied public lands of the United States Act of Con- 

containing salt springs, or, deposits of salt ,in any form,®^^^® 

and chiehy valuable therefor, are hereby declared to be 

subject to location and purchase under the provisions of 

the law relating to placer-mining claims: Provided, That 

the same person shall not locate or enter more than one 

claim hereunder. 

Be it enacted by the Senate and House of R e present a- 
tives of the United States of America in Congress assembled claims, 
'riiat where oil lands are located under the provisions of Act of Con- 
title thirty-two, chapter six, Revised Statutes of the Unitedf-^j^^ 

States, as placer-mining claims, the annual assessment labor 
upon such claims may be done upon any one of a group 
of claims lying contiguous and owned by the same person 
or corporation, not exceeding five claims in all: Provided, 

'Fhat said labor will tend to the development or to deter¬ 
mine the, oil-bearing character of such contiguous claims. 




DEPARTMENT OF THE INTERIOR 

GENECAL LAND OFFICE REGULATIONS 


NATURE AND EXTENT OF MINING CLAIMS. 

1. Mining claims are of two distinct classes: Lode claims and placers. 

LODE CLAIMS. 

2. The status of lode claims located or patented previous to the 10th 
day of May, 1872, is not changed with regard to their extent along the 
lode or width of surface; but the claim is enlarged by sections 2322 
and 2328, by investing the locator, his heirs or assigns, with the right 
to follow, upon the conditions stated therein, all veins, lodes, or ledges, 
the top or apex of which lies inside of the surface lines of his claim. 

3. It is to be distinctly understood, however, that the law limits the 
possessory right to veins, lodes, or ledges, other than the one named 
in the original location, to such as were not adversely claimed on May 
lo, i 8 / 2 , and that where such other vein or ledge was so adversely 
claimed at that date the right of the party so adversely claiming is in 
no way impaired by the provisions of the Revised Statutes. 

4. From and after the 10th May, 1872, any person who is a citizen 
of the United States, or who has declared his intention to become a 
citizen, may locate, record, and hold a mining claim of fifteen hundred 
linear feet along the course of any mineral vein or lode subject to loca¬ 
tion; or an association of persons, severally qualified as above, may make 
joint location of such claim of fifteeii hundred feet, but in no event 
can a location of a vein or lode made after the 10th day of May, 1872, 
exceed fifteen hundred feet along the course thereof, whatever may be 
the number of persons composing the association. 

5. With regard to the extent of surface ground adjoining a vein or 
lode, and claimed for the convenient working thereof, the Revised Statutes 
provide that the lateral extent of locations of veins or lodes made after 
May 10, 1872, shall in no case exceed three hundred feet on each side 
of the middle of the vein at the surface, and that no such surface rights 
shall be limited by any mining regulations to less than twenty-five feet 
on each side of the middle of the vein at the surface, except where 
adverse rights existing on the 10th May, 1872, may render such lim¬ 
itation necessary; the end lines of such claims to be in all cases par¬ 
allel to each other. Said lateral measurements can not extend beyond 
three hundred feet on either side of the middle of the vein at the surface, 
or such distance as is allowed by local laws. For example: 400 feet 


12 



can not be taken on one side and 200 feet on the other. If, however, 
300 feet on each side are allowed, and by reason of prior claims but 
100 feet can be taken on one side, the locator will not be restricted to 
less than 300 feet on the other side; and when the locator does not 
determine by exploration where the middle of the vein at the surface is, 
his discovery shaft must be assumed to mark such point. 

6. By the foregoing it will be perceived that no lode claim located 
after the 10th May, 1872, can exceed a parallelogram fifteen hundred 
feet in length by six hundred feet in width, but whether surface ground 
of that width can be taken depends upon the local regulations or State 
or Territorial laws in force in the several mining districts; and that 
no such local regulations or State or Territorial laws shall limit a vein 
or lode claim to less than fifteen hundred feet along the course thereof, 
whether the location is made by one or more persons, nor can surface 
rights be limited to less than fifty feet in width unless adverse claims 
existing on the 10th day of May, 1872, render such lateral limitation 
necessary. 

7. Locators can not exercise too much care in defining their loca¬ 
tions at the outset, inasmuch as the law requires that all records of 
mining locations made subsequent to May 10, 1872, shall contain the 
name or names of .the locators, the date of the location, and such a 
description of the claim or claims located, by reference to some natural 
object or permanent monument as will identify the claim. 

8. No lode claim shall be located until after the discovery of a vein 
or lode within the limits of the claim, the object of which provision 
is evidently to prevent the appropriation of presumed mineral ground 
for speculative purposes, to the exclusion of bona fide prospectors, before 
sufficient work has been done to determine whether a vein or lode really 
exists. 

12. In order to hold the possessory right to a location made since 
May 10, 1872, not less than one hundred dollars’ worth of labor must 
be performed or improvements made thereon annually. Under the pro¬ 
visions- of the act of Congress approved January 22, 1880, the first 
annual expenditure becomes due and must be performed during the 
calendar year succeeding that in which the location was made. Where 
a number of contiguous claims are held in common, the aggregate expendi¬ 
ture that would be necessary to hold all the claims may be made upon 
any one claim. Cornering locations are held not to be contiguous. 

13. Failure to make the expenditure or perform the labor required 
upon a location made before or since May 10, 1872, will subject a claim 
to relocation, unless the original locator, his heirs, assigns, or legal 
rei)resentatives have resumed work after such failure and before relocation. 

14. Annual expenditure is not required subsequent to entry, the date 
of issuing the patent certificate being the date contemplated by statute. 

15. Upon the failure of any one of several coowners to contribute 
his proportion of the required expenditures, the coowners who have per¬ 
formed the labor or made the improvements as required may, at the 
expiration of the year, give such delinquent coowner personal notice in 
writing, or notice by publication in the newspaper published nearest 


13 


the claim for at least once a week for ninety days; and if, upon the 
expiration of ninety days after such notice in writing, or upon the expira¬ 
tion of one hundred and eighty days after the first newspaper publica¬ 
tion of notice, the delinquent coowner shall have failed to contribute 
his proportion to meet such expenditures or improvements, his interest 
in the claim by law passes to his coowners who have made the expendi¬ 
tures or improvements as aforesaid. W’here a claimant alleges owner¬ 
ship of a forfeited interest under the foregoing provision, the sworn 
statement of the publisher as to the facts of publication, giving dates 
and a printed copy of the notice published, should be furnished, and 
the claimant must swear that the delinquent coowner failed to contribute 
his proper proportion within the period fixed by the statute. 


TUNNELS. 


16. I’he effect of section 2323, Revised Statutes, is to give the pro¬ 
prietors of a mining tunnel run in good faith the possessory right to 
fifteen hundred feet of any blind lodes cut, discovered, or intersected 
by such tunnel, which were not previously known to exist, within three 
thousand feet from the face or point of commencement of such tunnel, 
and to prohibit other parties, after the commencement of the tunnel, 
from prospecting for and making locations of lodes on the line thereof 
and within said distance of three thousand feet, unless such lodes appear 
upon the surface or were previously known to exist. The term “face,” 
as used in said section, is construed and held to mean the first working 
face formed in the tunnel, and to signify the point at which the tunnel 
actually enters cover; it being from this point that the three thousand 
feet are to be counted upon which prospecting is prohibited as afore¬ 
said. 


17. To avail themselves of the benefits of this provision of law, the 
proprietors of a mining-tunnel will be required, at the time they enter 
cover as aforesaid, to give proper notice -of their tunnel location by 
erecting a substantial post, board, or monument at the face or point 
of commencement thereof, upon which should be posted a good and 
sufficient notice, giving the names of the parties or company claiming 
the tunnel right; the actual or proposed course or direction of the 
tunnel, the height and width thereof, and the course and distance from 
such face or point of commencement to some permanent, well-known 
objects in the vicinity by which to fix and determine the locus in man¬ 
ner heretofore set forth applicable to locations of veins or lodes, and 
at the time of posting such notice they shall, in order that miners or 
prospectors may be enabled to determine whether or not they are within 
the lines of the tunnel, establish the boundary lines thereof, by stakes 
or monuments placed along such lines at proper intervals, to the terminus 
of the three thousand feet from the face or point of commencement 
of the tunnel, and the lines so marked will define and govern as to 
specific boundaries within which prospecting for lodes not previouslv 
known to exist is prohibited while work on the tunnel is being prosecuted 
with reasonable diligence. 

18. A full and correct copy of such notice of location defining the. 


14 


tunnel claim must be filed for record with the mining recorder of the 
district, to which notice must be attached the sworn statement or declara¬ 
tion of the owners, claimants, or projectors of such tunnel, setting forth 
the facts in the case; stating the amount expended by themselves and 
their predecessors in interest in prosecuting work thereon; the extent 
of the work performed, and that it is bona fide their intention to prose¬ 
cute work on the tunnel so located and described with reasonable dili¬ 
gence for the development of a vein or lode, or for the discovery of 
mines, or both, as the case may be. I’his notice of location must be 
duly recorded, and, with the said sworn statement attached, kejjt on the 
recorder’s files for future reference. 


PLACER CLAIMS. 


19. But one discovery of mineral is required to support a placer 
location, whether it be of twenty acres by an individual, or of one hun¬ 
dred and sixty acres or less by an association of persons. 

20. The act of August 4, 1892, extends the mineral-land laws so as 
to bring lands chiefly valuable for building stone within the provisions 
of said law by authorizing a placer entry of such lands. Registers 
and receivers should make a reference to said act on the entry papers in 
the case of all placer entries made for lands containing stone chiefly 
valuable for building purposes. Lands reserved for the benefit of public 
schools or donated to any State are not subject to entry under said act. 

21. 'Lhe act of February 11, 1897, provides for the location and 
entry of public lands chiefly valuable for petroleum or other mineral 
oils, and entries of that nature made prior to the passage of said act are 
to be considered as though made thereunder. 

22. By section 2330 authority is given for subdividing forty-acre 
legal subdivisions into ten-acre tracts. These ten-acre tracts should be 
considered and dealt with as legal subdivisions, and an applicant hav¬ 
ing a placer claim which conforms to one or more of such ten-acre tracts, 
contiguous in case of two or more tracts, may make entry thereof, after 
the usual proceedings, without further survey or plat. 

23. In subdividing forty-acre legal subdivisions, the ten-acre tracts 
must be in square form, with lines at right angles with the lines of the 
public surveys; and the notice given of the application must be specific 
and accurate in description. 

24. A ten-acre subdivision may be described, for instance if situated 

in the extreme northeast of the section, as the “NF. the NK. ^ of 

the NE. of the section, or, in like manner, by appropriate terms, 
wherever situated; but, in addition to this description, the notice must 
give all the other data required in a mineral application, by which 
parties may be put on inquiry as to the land sought to be patented. 
'The proofs submitted with applications must show clearly the character 
and extent of the improvements upon the premises. 

25. The proof of improvements must show their value to be not less 
than five hundred dollars and that they were made by the applicant for 
patent or his grantors. 'Lhis proof should consist of the affidavit of two 


15 


or more disinterested witnesses. I'he annual expenditure to the amount 
of one hundred dollars, required by section 2324, Revised Statutes, must 
be made upon placer claims as well as lode claims. 

26. Applicants for patent to a placer claim, who are also in jjosses- 
sion of a known vein or lode included therein, must state in their appli¬ 
cation that the placer includes such vein or lode. The published and 
posted notices must also include such statement. If veins or lodes lying 
within a placer location are owned by other parties, the fact should be 
distinctly stated in the application for patent and in all the notices. 
But in all cases, whether the lode is claimed or excluded, it must be 
surveyed and marked upon the plat, the field notes and plat giving the 
area of the lode claim or claims and the area of the placer separately. 
An application which omits to claim such known vein or lode must be 
construed as a conclusive declaration that the applicant has no right of 
possession to the vein or lode. Where there is no known lode or vein, 
the fact must appear by the affidavit of two or more witnesses. 

27. By section 2330 it is declared that no location of a placer claim, 
made after July 9, 1870, shall exceed one hundred and sixty acres for 
any one person or association of persons, which location shall conform 
to the United States survevs. 

28. Section 2331 provides that all placer-mining claims located after 
May 10, 1872, shall conform as nearly as practicable with the United 
States system of public-land surveys and the rectangular subdivisions of 
such surveys, and such locations shall not include more than twenty acres 
for each individual claimant. 

29. The foregoing provisions of law are construed to mean that after 
the 9th day of July, 1870, no location of a placer claim can be made 
to exceed one hundred and sixty acres, whatever may be the number of 
locators associated together, or whatever the local regulations of the dis¬ 
trict may allow; and that from and after May 10, 1872, no location 
can exceed twenty acres for each individual participating therein; that 
is, a location by two persons can not exceed forty acres, and one by three 
persons can not exceed sixty acres. 

30. The regulations hereinbefore given as to the manner of marking 
locations on the ground, and placing the same on record, must be observed 
in the case of placer locations so far as the same are applicable, the 
law requiring, however, that all placer-mining claims located after May 
10, 1872, shall conform as near as practicable with the United States 
system of public-land surveys and the rectangular subdivisions of such 
surveys, whether the locations are upon surveyed or unsurveyed lands. 


REGULA'l'IONS UNDER SALINE ACT. 

31. Under the act approved January 31, 1901, extending the mining 
laws to saline lands, the provisions of the law relating to placer-mining 
claims are extended to all States and Territories and the district of 
Alaska, so as to permit the location and purchase thereunder of all unoc¬ 
cupied public lands containing salt springs, or deposits of salt in any 


16 


form, and chiefly valuable therefor, with the proviso “That the same 
person shall not locate or enter more than one claim hereunder.” 

32. Rights obtained by location under the placer-mining laws are 
assignable, and the assignee may make the entry in his own name; so, 
under this act a person holding as assignee may make entry in his own 
name; Provided, He has not held under this act, at any time, either as 
locator or entryman, any other lands; his right is exhausted by having 
held under this act any particular tract, either as locator or entryman, 
either as an individual or as a member of an association. It follows, 
therefore, that no application for patent or entry, made under this act. 
shall embrace more than one single location. 

33. In order that the conditions imposed by the proviso, as set forth 
in the above paragraph, may duly appear, the notice of location presented 
for record and the application for patent must each contain a specific 
statement under oath by each person whose name appears therein that 
he never has, either as an individual or as a member of an association, 
located or entered any other lands nuder the provisions of this act. Assign¬ 
ments made by persons who are not severally qualified as herein stated 
will not be recognized. 


PROCEDURE TO OBTAIN PATEN'l' TO MINERAL LANDS. 

LODE CLAIMS. 

34. The claimant is required, in the first place, to have a correct 
survey of his claim made under authority of the surveyor-general of the 
State or Territory in which the claim lies, such survey to show with 
accuracy the exterior surface boundaries of the claim, which boundaries 
are required to be distinctly marked by monuments on the ground. 


MILL SITES. 

61. Land entered as a mill site must be shown to be nonmineral. 
Mill sites are simply auxiliary to the working of mineral claims, and 
as section 2337, which provides for the patenting of mill sites, is embraced 
in the chapter of the Revised Statutes relating to mineral lands, they are 
therefore included in this circular. 

62. To avail themselves of this provision of law parties holding the 
possessory right to a vein or lode claim, and to a piece of nonmineral 
land not contiguous thereto for mining or milling purposes, not exceed¬ 
ing the quantity allowed for such purposes by section 2337, or prior 
la\vs, under which the land was appropriated, the proprietors of such vein 
or lode may file in the proper land office their application for a patent, 
under oath, in manner already set forth herein, which application, together 
with the plat and field notes, may include, embrace, and describe, in 
addition to the vein or lode claim, such noncontiguous mill site, and 
after due proceedings as to notice, etc., a patent will be issued convey¬ 
ing the same as one claim. The owner of a patented lode may, by an 

17 


iiulci)ciident aj)plication, secure a mill site if good faith is manifest in 
its use or occupation in connection with the lode and no adverse claim 
exists. 

63. Where the original survey includes a lode claim and also a mill 
site the lode claim should be described in the plat and field notes as 
“Sur. No. 37, A,” and the mill site as “Sur. No. 37, B,” or whatever 
may be its appropriate numerical designation; the course and distance 
from a corner of the mill site to a corner of the lode claim to be invariably 
given in such plat and field notes, and a copy of the plat and notice 
•of application for patent must be conspicuously posted upon the mill 
site as well as upon the vein or lode claim for the statutory period of 
sixty days. In making the entry no separate receipt or certificate need 
be issued for the mill site, but the whole area of both lode and mill site 
will be embraced in one entry, the price being five dollars for each 
acre and fractional part of an acre embraced by such lode and mill- 
site claim. 

64. In case the owner of a quartz mill or reduction works is not the 
owner or claimant of a vein or lode claim the law permits him to make 
application therefor in the same manner prescribed herein for mining 
claims, and after due notice and proceedings, in the absence of a valid 
adverse filing, to enter and receive a patent for his mill site at said 
price per acre. 

65. In every case there must be satisfactory proof that the land 
claimed as a mill site is not mineral in character, which proof may, where 
the matter is unquestioned, consist of the sworn statement of two or 
more persons capable, from acquaintance with the land, to testify under- 
standingly. 

36. 'The surveyors-general should designate all surveyed mineral claims 
by a progressive series of numbers, beginning with survey No. 37, irre¬ 
spective as to whether they are situated on surveyed or unsurveyed lands, 
the claim to be so designated at date of issuing the order therefor, in 
addition to the local designation of the claim; it being required in all 
cases that the plat and field notes of the survey of a claim must, in 
addition to the reference to permanent objects in the neighborhood, 
describe the locus of the claim with reference to the lines of public 
surveys by a line connecting a corner of the claim Avith the nearest 
public corner of the United States surveys, unless such claim be on 
unsurveyed lands at a distance of more than two miles from such public 
corner, in which latter case it should be connected with a United States 
mineral monument. Such connecting line must not be more than two 
miles in length, and should be measured on the ground direct between 
the points, or calculated from actually surveyed traverse lines if the 
nature of the country should not permit direct measurement. If a regu¬ 
larly established survey corner is within two miles of a claim situated 
on unsurveyed lands, the connection should be made with such corner 
in preference to a connection with a United States mineral monument. 
'I'he connecting line or traverse line must be surveyed by the mineral 
surveyor at the time of his making the particular survey and be made 
a part hereof. 

38. 'The following particulars should be observed in the survey of 
(^very mining claim: . .. - 


18 


(1) 'rhe exterior boundaries of the claim, the number of feet claimed 
along the vein, and, as nearly as can be ascertained, the direction of 
the vein, and the number of feet claimed on the vein in each direction 
from the point of discovery or other well-defined place on the claim 
should be represented on the plat of survey and in the field notes. 


MINERAL LANDS WITHIN FOREST RESERVES. 

114. 'The act of June 4, 1897, provides that “any mineral lands in 
any forest reservation which have been or which may be shown to be 
such, and subject to entry under the existing mining laws of the United 
States and the rules and regulations applying thereto, shall continue to 
be subject to such location and entry,” notwithstanding the reservation, 
d'his makes mineral lands in the forest reserves subject to location* and 
entry under the general mining laws in the usual manner. 

'Fhe act also provides that “The Secretary of the Interior may permit, 
under regulations to be prescribed by him, the use of timber and stone 
found upon such reservations, free of charge, by bona fide settlers, miners, 
residents, and prospectors for minerals, for firewood, fencing, buildings, 
mining, prospecting, and other domestic purposes, as may be needed by 
such persons for such purposes; such timber to be used within the 
State or I'erritory, respectively, where such reservations may be located.” 

For further instructions under this act see circular of April 4, 1900 
(30 L. D., 23, 28-30). 


19 


DISCOVERY. 


I'he first requirement in obtaining po.ssessory title to a portion of the 
mineral public domain is the discovery of mineral.^ This discovery 
must be made on unappropriated mineral land in the public domain,^ 
and it may be made in a national forest reserve, and title obtained.^'* 

It is not necessary that the appropriator be the first discoverer, as, 
in the relocation of an abandoned claim, the discovery of the original 
location can be used.^^ 

No claim is valid without a legal discovery." 

A ‘discovery to meet the requirements of the statute must be made 
on rock in place,^ bearing any of the precious metals in sufficient quan¬ 
tities to justify a man to expend his time and means in developing the 
ground.^ 

It is not required that the rock be rich, or poor, or even of economic 
value,but it must be something beyond a mere guess on the part of the 
appropriator.® Mere indications, however strong, would not be sufficient 
on which to base a location.® 

I'he posting of a notice and marking the boundaries of a claim without 
a discovery would initiate no right, and would be treated as a mere 
speculation,® although if a later discovery were really made it would 
legalize the previous acts and make a valid location if it were done 
before the entrance of intervening rights of others;^" but in this, as in 
all cases of this description, the one who first made the discovery would 
hold the claim. 

Two competing prospectors, working in the same territory and both 
searching either by shafts, tunnels, or other methods to find a blind vein, 
would each be entitled to his own individual working without inter¬ 
ference from the other, until one or the other of them made his discovery; 
then the discoverer would have the right to oust the other through the 
courts.^^ 

Although a single discovery would not justify the locating of a full 
claim on either side, still it is held that a shaft situated across the end 
line of a claim, showing a defined vein on both sides, is sufficient dis¬ 
covery to justify the location of the other claim yet it would be 
better to make separate discoveries, if possible, a little distance apart. 


LOCATION AND RECORD. 

Sec. 2324, Revised Statutes, does not specifically require a location 
noticeto be either posted"® or recorded, but exacts that if a record is 


20 



made that it shall contain certain specific details'^*’* and it gives the right 
to States, Territories, and mining districts to make such laws and regu¬ 
lations not in conflict with the United States laws as they may deem 
essential."''^ Regardless of this, it is questionable whether it would be 
safe in the absence of such local statutes to fail to initiate title, without 
both notice and record. Miners are accustomed to look on both as indis¬ 
pensable, and it is far safer to comply with their ideas on this subject, 
saving both trouble and litigation. 

The usual custom is to post a notice of location at or near the dis¬ 
covery point, describing as well as the circumstances will permit the 
claimed location, its size, and the courses of the lines, giving the names 
of the appropriators, their address, and date.^*^ This notice does not 
need to be, nor is it, very concise,^® but a more detailed and fuller copy 
is recorded^® with the district recorder if there is one, or with the county 
recorder, or with both. 

I'his latter record must contain all the statutory requirements and 
should be sufficiently full to be able to identify the ground claimed, 
as it is really the inception of the paper title and operates as notice to 
the world of the locator’s claim to the ground.^^ 

Notices are not conclusive of the facts they recite as against an adverse 
claimant, but are competent evidence of their being made and filed and 
are important links in the title;"® lacking contest, they would be 
unquestioned. 

The correct dates of location should be used, antedating being held 
a fraud. 

The object of the record is to identify the claim,and ordinarily will 
bind the locator as to its locus,®"* but where the monuments or markings 
on the ground vary from the record, the monuments will govern.®®*^®’'^' 

The law recognizes the fact that the locator is laboring under diffi¬ 
culties in making his location and will generally make mistakes in his 
record,®* and, therefore, liberally construes them.®^ 

The statute requires a record to contain a tie to some natural object, 
or permanent monument; this may be another mining claim in the 
neighborhood,®® or, if the surroundings of the country do not contain 
such mark, stakes driven in the ground are sufficient.®® Such natural 
objects may be elsewhere than on the ground located; a post firmly 
planted in the ground, or a mining shaft®® or a gulch in the vicinity 
will answer.®" What constitutes a suitable record is a question of fact, 
and not of law, and should be left to a jury to determine.'*® 

The courts are indulgent and favor bona fide locators, dealing leniently 
with their location notices®* whenever these questions arise, 'bhey con¬ 
sider a mistaken record as natural to a location.®* 

Where an error of record is found it should be corrected by an amend¬ 
ment.■** Most of the mining states have statutes allowing amended loca- 


21 


tions, but irrespective of this there is reason why an amendment to the 
record title be made if no one’s rights are interfered with.^^ 

The location record is generally full of faults and omissions, incorrect 
measurements, etc., end lines not parallel, claim too short or too long, 
and, possibly, not laid out along the vein. Later developments disclose 
these omissions or errors and the record is corrected by an amended 
notice."^ This amended notice can not be construed as an abandonment, 
as that is a question of intent,^® and the evident intent of the amended 

notice is to preserve and not jeopardize. The amendment may go to the 
extent of swinging the claim to appropriate other ground if no inter¬ 
vening rights have vested,’® and if to no one’s injury. 


BOUNDARIES. 

The only requirement of the statute is that the end lines of a claim 
shall be parallel.®’ 

The ideal claim, for reasons later seen, should be in the form of a 
rectangle or a parallelogram.®"^ 

d’he statute requiring that end lines shall be parallel has for its basis 
the right of the locator to follow his vein on its dip in a downward 
course wherever it may go, exerting his extralateral rights within the 
planes of his end lines protracted downward,®® but where the discovery 
vein departs from the side line is drawn the real end line.®® 

If the lines were not parallel, his underground rights would either 
extend themselves fan-shaped to the injury of the property rights of 
others, or, by contraction, work himself injury. 

End lines must be straight and unbroken,®® and as a triangular-shaped 
claim gives no extralateral rights,®® there must be parallel end lines at 
either end of the claim.®® 

It frequently happens that in locating a fractional claim the senior 
claims bounding it will cause a non-parallelism of both sides and ends. 
In this case the monuments should be placed on the adjoining claims®® 
if this can be done peaceably without trespass.®^ Of course, the loca¬ 
tion notice should except and disavow any claim to the ground of the 
senior location in conflict; should, however, there be an objection, a 
location may be made by posts, or monuments, and written notices at 
either end of the lode line without setting out the exterior boundary 
stakes,®® or by setting up witness stakes at the nearest point on line. 

An end line protracted across a senior location, although claim is 
expressly waived to the conflicting area thereby produced, still continued 
to be the end line for extralateral purposes.®® 

Owing to the lack of knowledge of the course of a vein at the time 


22 



of location, it frequently happens that the apex does not run along 
the located lode line, but comes in through one end and passes out at a 
side line;®^ then at this point of intersection a line parallel to the end 
line is projected across the claim and extralateral rights prevail between 
these two points downward.^® 

The end lines of the discovery vein when established become the end 
lines of all secondary veins as far as extralateral rights are concerned;®^' 
although on patented ground the secondary veins could be worked within 
the planes of the boundaries outside the newly established end lines, 
but there would be no extralateral rights to be assumed. 

If a vein entered and passed out of the same side line it would have 
extralateral rights on planes parallel to the end lines at the points of 
entrance and exit. 

The showing that a secondary vein ran from one end line to the 
other would not affect the extralateral rights of the discovery vein as 
determined by its exit from a side line.®^ 

Should a discovery vein enter one side line and pass out the opposite 
side line, the side lines would become end lines, and the end lines side 
lines, and the extralateral rights would be assumed from the new end 
lilies.®^ This is a case where it would be necessary to have located orig¬ 
inally parallel side lines, otherwise no extralateral rights could be 
acquired. 


ANNUAL LABOR. 

The possessory right of the locator is conditional on his doing his annual 
assessment work.'^^ This has been the condition prescribed in all legis¬ 
lation either of Congress, State, Territory, or district rule or regulation.'^® 
The statutory time for doing this work is in the year succeeding the 
location year,'^® and may be done at any time during that year.'^® 

If work is commenced the last day it must be prosecuted continuously, 
with the exception of legal holidays,and the full labor requirement 
completed,^® as mining rights are not open to relocation until the prior 
locator has abandoned the ground,^® and this forfeiture can only be 
established on clear and convincing proof and even if the claim is 
open to relocation by reason of the nonperformance of the assessment 
w'ork, and the owner performs such work before a relocation is made, 
his rights are renewed.^^ 

If the work is not started at this time, but after years of neglect, and 
no intervening rights have crept in, it will revive the original title.'® 

In determining the amount of work done to constitute the assessment 
work, the test is not what was paid, nor the contract price, but what 
was the reasonable value of the work or improvements.®® 


23 



\\ ork may ke done anywhere on the surface or anywhere below within 
the lilies^*" or it may be done outside the claim if for the purpose of 
developing it.*’ 

d'he assessment work may be done on one of several adjoining claims- 
if the work is really for the benefit of all, and it would make no difference 
if the work were done in a patented claim for the benefit of possessory 
locations,®^ but such claims must be contiguous.*® 

But whether the work was, or was not, done to benefit all the claims 
is a question for a jury to determine.*'* A district rule may require more 
than the statutory value of assessment work, but it can not decrease 
the amount below this;*® or it may require annual labor during the 
location year,*' but. a rule fixing a given , number of feet of shaft, or 
tunnel, as assessment work will be void if the shaft, or tunnel, should- 
cost less than the one hundred dollars prescribed.*® 

Work must be continued annually on all possessory claims and only 
ceases to be required when entry is made, and the land paid for.** 


APEX. 

The apex of a vein is the upper, or terminal, edge on or nearest the 
surface of the earth,®® and no technical refinements are required to 
define it.*®* 

If the vein, instead of showing an end, flattens out or turns over and 
goes onward, or downward, such place is not its true apex ;®* but if, in 
following a vein downward on its dip from a true apex, a fold, or swell, 
be encountered, even if it be elevated higher than the apex and. it then 
descends, giving the vein a general downward course, the extralateral rights 
will still be preserved.**^ 

The apex of a vein may be a point, again, a line or edge of great 
length,®“ but wherever it is, the boundaries laid on the surface of the 
ground whose vertical planes will enclose it, will take the title to®® it 
with all its extralateral rights®- and it may be followed to any depth 
through adjoining property.*** 

Any part of an apex of a vein found within the boundaries of a claim 
is sufficient to give title,®® whether it be the discovery or a secondary 
vein; if the latter, however, its extralateral rights will be determined 
by the same rights which the discovery vein may have.**® 

At times a discovery may be made by a tunnel, or shaft, on the dip 
of a vein. It is then assumed that the vein ascends upward at the same 
angle,®* but great care should be exercised in laying out the location 
in this case and it would be far better to raise to the surface to prove 
apex, as no extralateral rights can otherwise be obtained.®® Invariablv 


24 



the burden of proof rests with extralateral claimants,®® and a prepon¬ 
derance of evidence is required;®" this would be especially so where 
the vein has barren zones,^®® as the presumption of ownership is within 
the vertical planes of the claim until the exterior apex right of intrusion 
is determined. 

A locator, or patentee, owns all veins, lodes, etc., within his vertical 
lines, subject only to the extralateral rights of others; but the rights 
must be proven indisputably by any one asserting them.®® 

A flat, or so-called blanket vein,^®® is classed with other lode deposits,^®® 
as the law considers all veins more or less vertical,^^® and the slightest 
inclination of the vein from the horizontal is sufficient to establish its 
dip.®® With this class of deposits, however, care should be used to 
establish the higher end, or edge, as even if the vein outcropped at the 
surface, and the inclination of the body was in the slightest degree 
upwards, it would give no extralateral rights.In this connection it 
is well to call attention to the fact that the outcropping of a vein is not 
necessarily the apex; it may be the cropping of the side of the dip,^^® 
or of the bottom, which nothing but exploration would determine. 

A right to follow a vein on its dip^^^ does not permit its being fol¬ 
low-ed on its strike wdthin the limits of another’s ground.If followed 
on its dip and a vein apexing in another valid existing location is encoun¬ 
tered and crossed, the junior location has no right to the ore at the 
intersection, but does have a right of way through it.“® 

If the junior vein, however, unite with the senior, its rights cease and 
the vein below becomes the property of the senior.®® 

If on its strike the apex of the vein passes through the end line and 
a side line it does not lose its extralateral rights,^®^ but those rights wdll 
be preserved as far as he holds the outcrop within his lines ^®® bounded 
by the vertical plane of the end line and a parallel plane at the point 
where the vein apex departs from the side line.^®® If, however, the 
apex curves back again through the same line and then crosses the other 
end line, it will not be entitled to any part of the vein whose apex is 
without the lines,^®^ but the same ruling would indicate ownership with 
full rights of all that part of the apex contained within the lines. 

Where the apex crossed both side lines, the side lines become end lines 
and the end lines side lines and the vein becomes entitled to all its extra¬ 
lateral rights.^®® 


PLACERS. 

A placer claimmay be located on unappropriated government land^®® 
in quantities not exceeding 20 acres to each locator and one location not 
exceeding 160 acresmay be made by eight individuals. This latter 


25 



would be a single claim requiring no more annual labor than the 
20-acre allowance of each individual, which is $100 worth per year,^^^ 
but a single person may locate as many separate 20-acre claims as he 
wishes if he can make a discovery on each. 

While a location of such a tract can be made by an agent for the others 
whose names are subscribed, and makes his act their act without their 
knowledge,^®® the use of the names of nominal associates or dummies 
is not permissible, and such location is valid only to the extent of the 
20 acres of the real locator,so that if three persons made a location 
of 60 acres and it was shown to be for the benefit of one individual, 
it would be good only to the extent of a single 20-acre claim. 

The statutory requirements for placer-claim locations are that they 
shall be made by legal subdivisions in tracts of not less than ten acres 
in a square form, and that a five-acre rectangular tract will not be rec- 
ognized.^^^ These ten-acre tracts may be joined together so they may 
constitute the full 160-acre limit, but they must be contiguous. 

An irregular 40-acre lot can not be subdivided in descriptive terms, 
but will require survey but a placer can be laid on subdivisions 
partly occupied by lode locations,^^® or even when they have been pat¬ 
ented, by excluding the conflicting areas of such claims. 

Because a placer includes agricultural land it does not remove the 
necessity of the location being by legal subdivision, for if the claim is 
more valuable for placer than for agricultural purposes the placer will 
hold.^3'’ 

On unsurveyed lands placers must be located in similar rectangular 
shapes and directions as on surveyed lands,but will require survey before 
patent. 

In the statute of 1870 the location of placers in conformity with the 
public-land surveys was made mandatory where such surveys had been 
made, but under the subsequent act of 1872 consideration was taken 
of claims such as could not be conformed to legal subdivisions. Such 
claims have since become known as gulch placers,^"*^ but the land-office 
definition is vague as to what constitutes them. The general test is 
that they be enclosed between high, precipitous banks.It is prob¬ 
ably best to locate by legal subdivisions at all times and thereby save 
trouble. 

A placer location confers no right to veins known to exist within 
its boundaries at the time of entry for patent,^^^ but its existence, to 
be excluded, must be known and clearly ascertained and of value suffi¬ 
cient for exploitation.^^® It is not sufficient that its presence was pre¬ 
sumed,^®® but where a vein’s presence was not known at the time of entry 
the patent protects it within the side lines of the claim.^®® 

When a lode is known to exist in a placer claim it can only be located 
by the owner or with his consent,^®® as a prospector can not enter on 


26 



located placer land before entry/^^ but after that it may be located by 
any one/^® as it is presumed that the title is still with the United Statesd^* 

Where the above condition of a known ledge exists it should be sur¬ 
veyed and incorporated in the application for patent and a strip twenty- 
five feet on either side of the lode line will be allowed at $5 per acre, 
or double the cost of placer groundd^" 

Until recently it was considered necessary to mark boundaries when 
located by legal subdivisions,^^” and this rule was followed until the 
California court held that a location notice calling for a legal subdivision 
was sufficient, as the government survey distinctly marked the ground 
so it could be readily traced,but until this question is finally settled 
the corners should be marked by stakes or postsd"^ This marking can 
be done by agents or employees,^and if the posts or other marks be 
destroyed or obliterated without the fault of the locator he can not be 
deprived of his rights on that account,^-” but as it might be a difficult 
matter to prove that the stakes were originally set, it would be well to 
keep them up. 

The annual labor requirements are that $100 worth of work each 
year shall be placed on the claim. This does not mean that this sum 
shall be spent or contracted for, but that a reasonable valuation of the 
work done, considering the cost of labor, the distance of the mine from 
the nearest supply place, etc., was sufficient to represent this sum.^^^ 

No particular kind is prescribed, but any class of work such as digging 
prospect holes, cuts, or ditches, removing brush, or in fact any work 
that would tend to improve the claim as a mine will be sufficient. 


TUNNEL SITES. 

Section 2323, Revised Statutes, gives the right to individuals, com¬ 
panies, and corporations, to run tunnels for the discovery of blind lodes 
or veins which do not show on the surface and protects the land from 
location after the commencement of the tunnel.A striking charac¬ 
teristic of this section differing from all other mining law is that it 
gives to the diligent owner of a tunnel certain mining rights without a 
preliminary discovery, contingent only upon his location and diligent 
prosecution of the work.^^^ 

This gives no right, however, to blind lodes apexing within the vertical 
lines of a senior valid location.In fact, there is no right of way to 
pass through such senior claim,^*^^ and care must be exercised in laying 
out its course that it may meet no such obstruction.^^^*^ 

d'he discovery of a vein within the tunnel gives the same rights as if 
discovered from the surface with the additional right that no boundaries 


27 



of the lode need be marked on the ground, the posting of a notice at 
the mouth of the tunnel giving the position of the discovery and the 
amount claimed on either side, and probably recording the same, being 
all that is necessaryd®^ 

But 1,500 feet can be taken of any vein discovered, but it may be 
taken in any proportion with relation to the tunnel line, all on either 
side or any portion of the 1,500 feet on one side and the remainder on 
the otherd®^ As will be seen, this enlarges the grant of territory to a 
width of 3,000 feet. Possibly if a lode were encountered at the tunnel 
running in approximately the same course, an additional grant would 
be obtained, but as it is a question that has never been tested it is 
doubtful. 

Where a lode location, in spite of the prohibition of the statute, is 
made on the surface subsequent to that of the tunnel and then a patent 
is obtained, it is not necessary that the tunnel owner object or adverse 
the application. This may be done later if a blind lode be discovered 
apexing within the side lines of the claim, for it is presumed that the 
tunnel’s rights before the discovery are too intangible to maintain an 
action.^®“ 

In the location of a tunnel site there are no statutory requirements, 
but the Interior Department requires a good and sufficient notice giving 
names of locators, date of location, proposed course, height, and width, 
and a tie to some permanent well-known object in the vicinity, this notice 
to be prominently posted on a substantial post, monument, or board at 
the point of commencement; that a full and correct copy of this notice 
with the owner’s affidavit attached setting forth the facts of the case, 
the amount expended, the work performed, and the intention to prose¬ 
cute work with diligence be recorded. 

In addition, at the same time the boundary lines shall be marked by 
stakes and monuments placed along such lines at proper intervals, and 
the lines so marked will define the boundaries. 

Probably a single line run over the course of the tunnel would be 
sufficient to answer this requirement, but owing to the indefinite instruc¬ 
tions it would be better to be doubly sure by marking exterior boundaries 
1,500 feet on either side of the tunnel line, making an area 3,000 feet 
square bisected by the tunnel line. 


MILLSITE. 


■ A millsite may be located and patented on land that is non-mineral in 
character if, for the benefit of a lode claim,^^^ the nonmineral character 
of the land must be shown,but the subsequent discovery of mineral 
on the ground will not void the title after patent. 


28 







It is not necessary to do any work to hold or patent it; all that is 
required is that it shall be used or occupied for mining or milling pur¬ 
poses/'^ its use for a pumping plant or dwelling houses for the work- 
men/'^^ of a water supply or tunnels to increase water flow, and house 
and stables,^®® cabins for storing tools and ore,^®" are held sufficient and 
a patent can be obtained for it at the same time as the lode claim if, at 
the time of entry, the millsite is being used or occupied.^'® 

Even after the lode claim is patented, a millsite can be obtained and 
patented if sufficient improvements to show good faith are shownd^^ 

But more than one millsite can not be obtained for a consolidated 
group without good and sufficient reasons be shownd^® 

A millsite for an independent quartz mill or reduction works can be 
located and patent obtained, subject to the same conditions as the other, 
but with the extra requirement that at the time of entry either the mill 
or reduction works are on the ground claimed^'® 

While necessary to mark boundaries and post corners if connected 
by survey with the lode claim to which it is appurtenant, it will not 
have to be connected with the corners of the public-land surveys. 


AGENT. 

A location of a mining claim may be made by an agent who can 
perform all the necessary acts, such as making the discovery, marking 
the claim, etc.^®*^ 

d'his location may be made in the absence of and without the knowl¬ 
edge of the principal,who is presumed to assent to the same,^°® but 
after the location is made the locator can not divest the title from his 
principal.^®" 

If tile location had been made in his own name but at the expense of 
and for the benefit of another, the locator holds the title in trust for 
the other and acquires no rights to it but what the other person can divest 
him of,^”‘ but if made in the other’s name he would acquire no record 
rights,^'*’® and if an agent made a relocation of the claim in his own 
name it would inure to his principal. 

An owner of a part interest in a mining claim is a cotenant with the 
other owners,^”® and if he relocates the claim when, on account of the 
annual assessment not being done the claim has lapsed, he becomes 
trustee for the others and the trust may be enforced in their favor,^^® so 
that if he should later patent the claim in his own name without their 
knowledge, the other coowners could enforce their rights.^^' 


29 



WATER. 


Hy long established custom among miners of the West, the appropriator 
of water for mining purposes who first takes the necessary steps to sub¬ 
ject the property to use is regarded as the source of title. 

I'he government silently acquiesced in the appropriation of its lands 
and water for mining purposes and by Congressional act of 1866 recog¬ 
nized it in granting rights of way for ditches, canals, and other pur¬ 
poses and, further; that whenever by priority of possession rights to the 
use of water for mining have vested and are recognized, the owners of 
such rights shall be protected in the same.^“ 

This protection did not extend, however, to the extent of permitting 
a senior appropriator to fill a creek bed to the destruction of a junior 
locator further down.^®® 

It seems to be the law between mills or reduction plants of whatever 
kind that the upper one may not permit the full volume of its tailings 
to wash down a creek bed to the serious injury of one below, but must 
so impound them that such injury shall be small, and the lower mill 
will have to stand the consequences of such slight damages as can not 
reasonably be prevented. 

It is true a prior appropriator of water has the right to have it'flow 
to him without interruption or diminished in quantity,-®^ but it was 
evidently the intention of the government to distribute this bounty among 
the greatest number and thereby rapidly develop the hidden resources, 
but at the same time preserve the substantial rights of individuals; there¬ 
fore, if the damage is not too great it would probably be considered 
an injury without damage. 

The prior appropriation gives a vested right to water and all subse¬ 
quent titles are subservient thereto.The rights of a homestead claimant 
would be subject to this prior one,^-- but it would be prior to a still 
subsequent appropriation and would prevent further diversion. 

An appropriation of water for a specific use and for a specified place 
may not change the place of use to the damage of a subsequent appro¬ 
priator lower down.“®® 


ALIENS. 

The provisions of the Revised Statutes relating to the rights of citi¬ 
zens and those who have declared their intention to become such in the 
appropriation of the public mineral lands include both sexes,“‘® and as 
no age qualification is prescribed, will likewise include minors as well. 


30 



Service in the army-of the United States gives an alien the standing 
of one who has declared his intention to become a citizen.--- 

An American corporation is a citizenwhen its stockholders have 
this qualification--^ and it is conclusively presumed that they have,^-'”* 
and as a citizen the corporation has, the full right of appropriation and 
operation of mining claims. 

An alien locator can not be ousted by a later claimant who is a citizen 
on the ground that the alien is not a citizen.--'^ It is true his location is 
voidable, but he is free from attack by any one except the government.--® 
This, however, relates wholly to his possessory title, as he can not obtain 
a patent until he has made the necessary declaration of citizenship, but 
he may do this at any period of the proceedings against him and his 
disability will be removed. 

An alien can receive a title from a qualified locator and be protected 
in his possession from all except the government,--^ and he can pass 
this title in the meantime to another. 

Should one qualified to locate claims have as a colocator an alien, it 
will in no way affect the rights of the former.--® 


UNITED STATES MINERAL SURVEYOR. 

While, under the act of May 10, 1872, all mineral lands were thrown 
open to occupation and purchase by citizens of the United States, a later 
reservation was made by Congress prohibiting on the ground of public 
policy any officer, clerk, or employee of the general land office acquiring, 
either directly or indirectly, any of the public lands of the government.-®^ 
This prohibition extends to the Surveyor General,®®® and his mineral 
deputies,®®® officers, clerks, and employees®'*® who are held to be connected 
with the general land office within the meaning of the statute,®®® and 
they are disqualified to enter public lands®®* or become interested in the 
entry of the same,®®® or to buy or sell any negotiable right under which 
any interest in the public lands may be asserted.®** 

'Fhe department goes even further than this and prohibits under pen¬ 
alty of dismissal the acquisition of any of the public lands, either directly 
or indirectly, by their wives.®** 

The Supreme Court of Utah decided that a deputy United States min¬ 
eral surveyor came under the statute and that a location of mineral land 
made by him was void.®®® On appeal to the United States Supreme 
Court this point was unfortunately not touched upon, the merits of the 
case passing off on other grounds. 


31 



In the performance of an official survey the deputy is not acting as an 
agent, attorney, or employee of the applicant, but as an official of the 
Cieneral Land Office,^^'^ and is prohibited from making the official survey 
of a mining claim the property of an individual or corporation by whom 
he is under permanent engagement as manager, engineer, superintendent, 
or otherwise."^" 




32 


SYLLABI OF LEADING DECISIONS 


DISCOVERY. 

No location of a mining claim shall be made until the discovery ^ 
of the vein or lode within the limits of the claim located. 

Enterprise M. Co. r. Rico Aspen M. Co., 167 U. S. 108. 

There can be no valid location of a mining claim without an 2 
actual mineral discovery. 

'Tuolumne Con. Mg. Co. v. Maier, 134 Cal. 583. 

1 he statute was intended to apply to any kind of a vein or lode ^ 
of quartz or other rock in place, bearing mineral, in whatever kind, 
character, or formation the mineral might be found. 

'The statutes should be so construed as to protect locators of min¬ 
ing claims who have discovered rock in place bearing any of the 
precious metals named therein in sufficient quantities to induce 
them to expend their time and money in prospecting and devel¬ 
oping the ground located. 

When the locator finds the rock in place, he has made a dis¬ 
covery within the meaning of the statute, whether the rock or 
earth is rich or poor, whether it assays high or low. 

It is the finding of the mineral in the rock in place as distin¬ 
guished from float rock that constitutes the discovery and warrants 
the location of a mining claim to be made. 

Book V. Justice Co., C. C. Dist. Nev. 

Rock in place as used in the mining statutes means rock that is 4 
enclosed in the general mass of the mountain as distinguished 
from float soil and debris of the surface, and it is not material 
where the rock or mineral was originally formed or deposited or 
that the vein matter is loose or broken or disintegrated. 

Jones V. Prospect Tunnel Co., 21 Nev. 339. 

Mere indications, however strong, are not sufficient to answer ^ 
the requirements of the statute, which recjuires as one of the essen¬ 
tial conditions to the making of a valid location of unappropriated 
public land of the United States under the mining laws a discovery 
of mineral within the limits of the claim. Indications of the 
existence of a thing is not the thing itself. 

Nevada Sierra Oil Co. v. Home Oil Co., C. C. S. D. 

Cal. 1899. 


33 



'riierc must he something beyond a mere guess on the part of 
the miner to authorize him to make a location that would exclude 
others from the ground, such as the discovery of the presence of 
the precious metals in it, or in such proximity to it as to justify a 
reasonable belief in its existence. 

Krhardt v. Boaro, 113 U. S. 527. 

d'he law will not distinguish between the different classes and ‘ 

kinds of ore, if they have appreciable value of the metal for which 
the location was made. Nor is it necessary for the ores to be of 
economical value for treatment. 

Stevens 7'. Williams, U. S. C. C. Colorado. 

A location based on a discovery of mineral made within the ^ 
limits of another valid and existing location is void. 

'Tuolumne Con. Mg. Co. v. Maier, 134 Cal. 583. 

A mere posting of a notice on a ridge of rocks cropping out of ~ 

the earth, or on the ground, that the poster has located thereon a 
mining claim, without any discovery or knowledge on his part of 
the existence of metal there, or in its immediate vicinity, would 
be justly treated as a mere speculative proceeding, and would not 
itself initiate any right. 

Krhardt v. Boaro, 113 U. S. 527. 

A discovery disclosing, and the lines of the claim including, any 10 
part of the width or apex of the vein is sufficient upon the point of 
legal disclosure of the vein within the limits of the claim. 

Larkin v. Upton, 144 U. S. 19. 

Need not be first discoverer.—The locator of a mining claim 11 
is not required to be the original discoverer of the vein or lode if, 
at the time of making the location, there is a discovery of a vein or 
lode of quartz or other rock in place, and knowledge on the part 
of the locator of mineral there; the locator is entitled to make 
his location, even though the discovery was first made by some 
one other than the locator. 

Hays V. Lavignini, 17 Utah 185. 

1 he order of time in which these several acts are performed is 12 
not of the essence of the requirements, and it is immaterial that 
the discovery was made subsequent to the completion of the acts 
of location, provided only all the necessary acts arc done before 
intervening rights of third parties accrue. 

Brewster v. wShoemaker, 28 Colo. 176. 


34 


A location of a mining claim made without discovery is not 
entitled to the legal protection of an injunction except to the extent 
of the pedis possessio that is the claimant’s actual workings. 

Competing prospectors can not make use of the writ of injunc¬ 
tion to secure priority of discovery or location on, or apparent supe¬ 
riority of right to a mining claim. 

Cemmel v. Swain, 28 Montana 331. 

Mineral lands within national forests may be freely prospected, 
located, developed, and opened in accordance with the mining laws 
and national forest regulations. 

Interior Department ruling. 


LOCATION AND RECORD. 

Abandonment is a question of intention; and a second location 
within the lines of a previous location is not an abandonment of 
the first. 

Weill V. Lucerne Co., 11 Nev. 200. 

Errors and mistakes in certificates of location are of frequent 
occurrence. * * * Of course it is often and, perhaps, generally 

impracticable to obtain the services of a surveyor in making a 
location, and a miner must depend upon his own skill and judg¬ 
ment. In such effort he usually fails. Indeed, it may be said as 
to the course of his lines he is always in error; and the natural 
object and permanent monument required by wSec. 2324 of the 
Revised Statutes are entirely beyond his grasp. Ele does not know 
what they are or how to refer to them. Every one who is at all 
familiar with mining locations knows that the first record must 
usually, if not always, be imperfect. Recognizing these difficulties, 
it has never been the policy of the law to void a location for defects 
in the record, but rather to give the locator an opportunity to 
correct his record whenever defects may be found in it. 

McEvoy V. Hyman, 25 Fed. 596. 

A location certificate whose only call for natural objects or 
permanent monuments as required by the act were the words “about 
fifteen hundred feet south of Vaughn’s Little Jennie Mine.” Held, 

to contain a sufficiently definite description. 

The provision of the Revised Statutes that records of mining 
claims shall contain such reference to some natural object or per¬ 
manent monument as will identify the claim means only that this 
is to be done when such reference can be made; and when it can 
not be so made, stakes driven in the ground are sufficient for 


35 



identification, or a reference to-a neighboring mine with distance 
and date of location, which will be presumed to be a well-known 
natural object in the absence of contradictory proof. 

Hammer v. Garfield M. Co., 130 U. S. 291. 

Where a locator of a mining claim on government land fraudu- ^4 
lently antedates his notice of location for the purpose of defeating 
an actual locator thereon, such location is fraudulent as against 
such rightful claimant and is fraudulent against the government. 

Muldoon V. Brown, 21 Utah 121. 

A description in the location certificate of a mining claim that ^5 
the mine is located in a certain section on top of the mountain 
south of Dew Drop Gulch is sufficient, since such gulch is a natural 
object or permanent monument. 

Duncan v. Fulton, 61 Pac. 244. 

A locator may swing his claim at will where no conflicting loca- 26 
tion has intervened. 

Duncan v. Fulton, 61 Pac. 244. 

Notices of location of mining claims are to be liberally construed 27 
and are not invalid because of mistakes therein as to courses and 
distances. 

Walton V. Wild Goose, 123 Fed. 209. 

Certificates of location are not conclusive proof of the facts 28 
which they recite against those asserting rights adverse to their 
makers. They are competent evidence of the fact that they were 
made and filed, and hence of an important link in the chain of the 
plaintiff’s title. When the existence of the facts which they recite 
is challenged they are but the ex-parte statements of interested - 
parties, and there is nothing in them or in their relation to the 
property of the parties to bind those claiming the lands adversely 
to the makers or to estop them from establishing the truth by the 
customary oral and written evidence. 

Uinta Tunnel Co. v. Creede, 196 U. S. 337. 

Location Without Posting Notice.—The mining laws of the 29 
United States do not require any written notice to be posted upon 
the location when made, and, in the absence of any local rule or 
regulation or State law requiring a notice to be posted, the location, 
the boundaries of which are properly marked upon the ground, 
is valid without the posting of any notice. 

But where the statutes of any State, or local rules and regula¬ 
tions of miners require notice to be posted upon the ground at the 
time the location is made, the construction given to the notices 
should be liberal, not technical. 


36 


Positive exactness as to the course is not required. The stakes 
and monuments referred to in the notice, and posted upon the 
ground, \vill control the direction stated in the notice. 

Book V. Justice, 58 Fed. 106. 

A miner’s posted notice is to be liberally construed. 

I'almadge v. St. John, 129 Cal. 430. 

A notice of location of a mining claim which, by reference to 
natural objects and monuments erected by the locator, contains 
directions which, taken in connection with such objects, would 
enable a person of ordinary intelligence to find the claim and trace 
its boundaries, is sufficient. 

Bramlett v. Flick, 23 Montana 95. 

No notice of location is required by the statute, but when the 
same is posted on the ground it may be considered as a marking to 
aid in tracing the boundaries of the location. 

Meydenbauer v. Stevens, 78 Fed. 787. 

When a notice of location contains a description of the claim, 
and is recorded, it operates as constructive notice that the locator 
claims the ground described. 

Id. 


30 


31 


32 


33 


The description of the location as shown by the record ordinarily 
will bind the locator as to the locus of the claim. 

Id. 

But where the distances and courses set out in the description 
as recorded vary from the monuments or markings made on the 
ground, the latter prevail and will determine the locus of the 
claim. 

Id. 

d'he statute does not require any record of location, but when 
one is made it prescribes what the same shall contain, viz., the name 
of the locator, the date of the location, and such a description of 
the claim by proper references as will identify the claim. 

Id. 

The principal object of the record is the identification of the 
claim; and if, considering everything it contains, the name of the 
locator, the date of the location, and the description by reference 
to some natural object or permanent monument, the claim can be 
identified, the record is sufficient. 

Id. 


34 


35 


36 


37 


37 


38 


A record is not required by the congressional act, but if required 
by state law or district rule, must contain a sufficient description, 
and from the nature of their respective offices the posted notice is 
not supposed to be as specific as the record or location certificate. 

(lird z\ California Oil Co., 60 Fed. 531. 

d'he law of Congress requires no record of a mining claim except 
in obedience to valid local rules or customs of miners but when 
such local rules or customs require a record it must contain the 
names of the locators, the date of the location, and such a descrip¬ 
tion of the claim, by reference to some natural object or permanent 
monument, as will identify the claim. But such natural object or 
permanent monuments are not required to be on the ground, 
although they may be; and a natural object may consist of any 
fixed natural object, and such permanent monument may consist 
of a prominent post or stake firmly planted in the ground or of a 
shaft sunk in the ground. If, by reference to any such natural 
object or permanent monument, the claim recorded can be identi¬ 
fied with reasonable certainty, the record will be sufficient in this 
particular, otherwise not. 

Jupiter M. Co. v. Bodie Con. M. Co., 11 Fed. 666. 

Whether the record calls were sufficient to identify the claim 
submitted as a question of fact for the jury. 

North Noonday v. Orient Co., 1 Fed. 522. 


Besides the change of names, the location certificate as recorded 
in the district record contained for the course of the lode the 
words westerly and easterly. They were changed to northerly and 
southerly, but without any fraudulent intent. Held, that the 
changes were immaterial, were no proof of abandonment of the 
original location, and that the facts of the case did not present any 
question of estoiDpel. 

Gleeson v. Martin White Co., 13 Nev. 442. 

The purpose of this additional amended certificate appears to be 
sufficiently expressed by the language of the act. It can not create 
a right of possession or location in the premises claimed under the 
first location, which did not appear prior to the filing of such 
additional certificate; it can confer no additional right and is 
therefore evidence of none, as against any intervening or pre¬ 
existing right of another. It follows that, except as against such 
intervening rights, an additional certificate serves the same pur¬ 
pose, in its admission as evidence as that of an original location 
certificate, and will relate back to the first location. The evident 
intent of the statute is that the additional certificate shall operate 
to cure defects in the original, and thereby to put the locator, 
where no other rights have intervened, in the same position that he 
would have occupied if no such defect had occurred. 


38 


BOUNDARIES. 


End lines must be straight. It is the end lines alone which define 
the extralateral rights, and they must be straight lines, not broken 
or curved lines, and to such the right on the vein below is strictly 
confined. 

Walrath v. Champion, 171 U. S. 293. 

Overlapping locations are of constant occurrence, recognized by 
land-office practice, and impossible to be avoided under the mineral- 
land laws. On such state of facts the nominal trespass of placing 
stakes on older claims will not be held to vitiate the claim, not¬ 
withstanding the rights of the older locator to the exclusive pos¬ 
session of his surface ground. 

Del Monte M. and M. Co. v. Last Chance, 171 U. S. 55. 

Setting Stakes on and Protracting Lines Across Prior Claims.— 
Lines of a junior lode location may be laid within, upon, or across 
the surface of a valid senior location for the purpose of defining 
for or securing to such junior location underground extralateral 
rights not in conflict with any rights of the senior location. 

Id. 

Protracted End Lines.—An end starting on clear ground, which 
is cut off as a surface boundary by reaching ground on an older 
patent but protracted across or upon such patent to find a corner, 
continues to be an end line, and is to be protracted on its downward 
course to define the extralateral right of a lode claimant following 
a vein on its dip. 

Id. 

Where the course of a vein is across a mining claim as located 
upon the surface instead of lengthwise, the side lines of the location 
become the end lines, and the end lines side lines, so far as lateral 
rights are concerned, but this does not impair the validity of a 
patent as to any part of the territory included therein. 

Argonaut Con. v. Turner, 23 Col. 400. 


Right to Draw in End Line.—When the outcrop of a vein 
passes through one end line and one side line of a location, the 
locator may draw in the other end line to the point of the inter¬ 
section of the vein with the side line, and abandon what lies 
beyond; and he will then have the same extralateral rights as if 
the claim had been located in the first instance. Even if the 
locator does not actually so draw in his end line and abandon what 
lies beyond, a new end line will be considered as drawn at that 
point, and the claim will have the same extralateral rights as if 
it had been so located in the first instance. 

Tyler M. Co. v. Last Chance, 71 Fed. 848. 

39 


Courses and distances under the authorities are assigned the 
lowest place in the scale of evidences, as being the least reliable. 

Cullacott V. Cash Gold M. Co., 8 Col. 179. 

Monuments Control Courses and Instances.—I'he courses and 
distances of a survey must yield to its monuments, whether natural 
or artificial. 

Pollard V. Shively, 5 Colo. 309. 

Where the discovery vein leaves the claim through a side line 
which fixes the limit of its extralateral rights to such discovery 
vein, but a secondary vein is found having an apex going through 
both side lines, such secondary vein has extralateral rights between 
the two points at which it leaves the side lines. 

Idle end lines of a discovery vein are not necessarily the end lines 
of a secondary vein; the extralateral rights of such secondary 
vein may extend beyond them. 

Ajax Gold M. Co. v. Hilkey, 31 Colo. 131. 

When a location has been made upon a vein across instead of 
along the strike of the vein discovered, the side lines become the 
end lines. Such claim has no extralateral rights, and the later 
finding of another vein having a course parallel to the side line does 
not aid the contention to pass such side lines. 

Cosmopolitan M. Co. v. Foote, 101 Fed. 518. 

Where the end lines of a mining claim have been established, ^0 
they remain the end lines as to all veins found within its surface 
boundaries. 

St. Louis M. and M. Co. v. Montana M. Co., 104 Fed. 664. 

A vein can not be followed beyond the adopted side lines. 61 

Golden Fleece M. Co. v. Cable Con. M. Co., 12 Nev. 312. 

Only those veins can be followed on the dip whose apexes are 62 
within the surface lines and within the area found by extending 
down vertical planes through end lines which must be parallel. 

Iron Silver M. Co. v. Elgin M. Co., 118 U. S. 196. 

When a claim is located in the form of an isosceles triangle the 63 
locators can not follow down their vein on its dip beyond the exte¬ 
rior lines of the location. Parallelism in end lines is essential to the 
exercise of such right. 

Montana Co. v. Clark, 42 Fed. 626. 


40 




Under the rule that where a lode mining claim is located across 
instead of along the vein, the original side lines become end lines, 
and the end lines side lines, the owner is entitled to all the rights 
with reference to the new side lines that he would have had if they 
had originally been located as such, including the right to follow 
the dip of the vein having its apex within the surface boundaries 
of his claim, beyond the vertical plane passing through such lines. 

Empire M. and M. Co. v. Tombstone M. Co., 131 Fed. 339. 

Strepey v. Stark, 7 Colo. 614. 

As the law stands, we think that the right to follow the dip 
of the vein is bounded by the end lines of the claim properly so 
called, which lines are those which are crosswise of the general 
course of the vein on the surface. But our laws have attempted to 
establish a rule by which each claim shall be so many feet of the 
vein lengthwise of its course to any depth below the surface, 
although laterally its inclination shall carry it ever so far from a 
perpendicular. 

Flagstaff S. M. Co. v. Tarbet, 98 U. wS. 463. 


Revised Statute 2342, which provides that in marking a mining 
claim the location must be distinctly marked on the ground so that 
its boundaries can be readily traced does not require the boundary 
lines to be indicated by physical marks and monuments nor define 
what kind of marks shall be made, nor on what part of the ground 
claimed; but any marking, whether by stakes, mounds, monuments, 
or written notices, whereby the boundaries can be readily traced, is 
sufficient. 

Oregon King M. Co. v. Brown, 119 Fed. 48. 


ANNUAL LABOR. 

. I 

d'he object of Section 2 of the Act of Congress of January 22, 
1880, amending Section 2324, was to make a uniform period for 
the annual work on all claims located since May 10, 1872, and fixed 
the first of January next succeeding the date of the location as the 
time of its commencement. 

Slavonian M. Co. v. Perasich, U. S. C.. C. Nev. 

A locator’s only right to the possession of a mining claim is con¬ 
ditional upon the performance annually of the required amount of 
labor, and if such labor is not performed the ground is subject to 

relocation. 

Du Prat V. James, 65 Cal. 555. 


41 



A forfeiture of a mining claim can not be established except 
upon clear and convincing proof of the failure of the former owner 
to have the work performed or improvements made to the amount 
required by law. 

Hammer v. Milling Co., 130 U. S. 291. 

In all legislation, whether of Congress or of the State or Ter¬ 
ritory, and by all mining regulations and rules, development by 
working is the condition of continued ownership until a patent is 
obtained. 

Plrhardt v. Boaro, 113 U. S. 535. 

Although the owuier of a claim has failed to do the necessary 
assessment work, so that the ground is subject to relocation, yet if, 
before any such relocation by others, he performs the amount of 
assessment work required by the statute, then his rights are revived 
and the subsequent location is invalid. 

justice M. Co. v. Barclay, 82 Fed. 554. 

'Fhe law fixes no time within the year when the work must be 
done, consequently if done at any time during the year it is enough. 

Belk V. Meagher, 104 U. S. 283. 

Mining claims are not open to relocation until the rights of the 
former locator have come to an end. No relocator of a mining 
claim can avail himself of the mineral in the public land which 
another has discovered until the prior locator has in fact abandoned 
the ground, or under the provisions of the mining law forfeited 
his right thereto. 

Book V. Justice, C. C. Hist. Nev. 

Facts Amounting to Resumption.—The owner of the original 
location came on the ground December 30, worked the claim 
December 31. January 1 was Sunday; but on the second he 
worked, and so continuously until one hundred dollars’ worth of 
work had been performed. 

The relocation was initiated Sunday morning (after midnight 
of the 31st). Held, a valid resumption of labor and that the relo¬ 
cation was void. The fact that the first day of January fell on a 
Sunday considered with the holding that the resumer is not bound 
to work on Sunday. 

Emerson v. McWhorter, 133 Cal. 510. 


72 


73 


74 


75 


76 


77 


Where the miner has claimed the statutory privilege of resuming 
work after neglect, but before relocation by another, he must prose¬ 
cute the same with reasonable diligence and complete the full 
requirement. 

Honaker v. Martin, 11 Montana 91. 


78 


42 


A claimant who has failed to perform the work for some years, 
but resumes work in good faith, is entitled to the property as against 
a relocator after resumption. 

Buffalo Zinc Co. v. Crump, 70 Ark. 525. 

'I'he provisions of the Revised Statutes authorizing the neces¬ 
sary work to be done on any one of the several claims held in com¬ 
mon applies only where such claims are contiguous. 

Royston v. Miller, C. C. Dist. Nev. 


Assessment work done on one of several adjoining claims may 
count for all, but in such cases it must be for the benefit of all the 
claims to be protected. Work done on a patented claim under the 
above conditions is available to protect the possessory claims, 
to work on Sunday. 

Justice M. Co. v. Barclay, C. C. Dist. Nev. 

^\'ork on a claim is work done anywhere upon the surface of it, 
within its surface lines, or anywhere below the surface within the 
lines, extending downward vertically, and though it should be 
shown that the work done within the lines below the surface was 
also within a lode having its apex outside of such vertical lines, 
it would still be work on the claim within the meaning of vSection 
2324. 

Mt. Diablo v. Callison, U. S. C. C. Nev. 

^Vork done outside of a claim for the purpose of prospecting 
or developing it is as available for holding the claim as if done 
within the boundaries of the claim itself. 

Mt. Diablo v. Callison, U. S. C. C. Nev. 


W’hether work done on one of a group of claims was for the 
benefit of the claims in controversy is a question of fact for the 
jury. 

Altoona v. Integral, 114 Cal. 100. 

In determining the amount of work done upon a claim or 
improvements put thereon for the purpose of representation, the 
test is as to the reasonable value of the said work or improve¬ 
ments, not what was paid for it, or what the contract price was, but 
it depends entirely upon whether or not the said work or improve¬ 
ments were reasonably worth the sum of $100. 

Mattingly v. Lewisohn, 13 Montana 508. 

The amount of annual labor may by district rule be made to 
exceed $100, but the rule can not, under the act of Congress, 
decrease the amount below $100. 

Northmore v. Simmons, 97 Fed. 386. 


43 


87 


Work may be required by district rule during the location year. 

Northmore v. Simmons, 97 Fed. 386. 

'File filing of an application for patent does not suspend the 
obligation to keep up the required annual work where, without 
paying the purchase price, the claimant permits his application to 
sleep for years, and upon such failure to comply with the condi¬ 
tions, the claim is open to relocation in the same manner as if no 
location had ever been made. 

Gillis V. Downey, 83 Fed. 483. 

A district rule fixing so many feet of sinking as full assessment 
work is not binding to allow of less expenditure than the act of 
Congress requires, but is evidence tending to show what the miners 
considered to be the value of labor in that locality. 

Wright V. Killian, 132 Cal. 56. 


88 


89 


APEX. 

The top or apex is the end or edge or terminal point of the 
lode nearest the surface of the earth. If found at whatever depth 
and the locator can define on the surface the area which will 
enclose it the lode may be held under such location. 

Iron Silver Co. v. Murphy, 3 Fed, 368. 

Apex is the highest point where it approaches nearest the sur¬ 
face of the earth and where it is broken on its ends so as to appear 
to be the beginning or the ending of the-vein. If the vein at its 
highest point turns over and pursues its course downward such 
point is not a true apex. 

Stevens v. Williams, U. S. C. C. Colorado. 


90 


91 


An apex of a vein is not necessarily a point, but often a line of 
great length. Any portion of the apex on the course or strike 
of the vein found within the limits of a claim is sufficient dis¬ 
covery to entitle the locator to obtain title, for while the owner 
of a vein may follow it in its descent into another’s territory beyond 
his own side lines he can not beyond his end lines, and the vein 
beyond these end lines is subject to further discovery and appro¬ 
priation. 

Larkin v. Upton, 144 U. S. 19. 

A vein dipping at any angle between the vertical and hori¬ 
zontal position downward has a departure from the perpendicular 
within the meaning of Section 2322. 

Leadville M. Co. v. Fitzgerald, U. S. C. C. Colo. 


92 


93 


44 


^V here the discovery of mineral is made underground on the 94 
dip of the vein it is presumed in the absence of a showing to the 
contrary that the vein extends upwards at the same angle. 

Brewster v. Shoemaker, 28 Colo. 176. 

But no location can be made on the middle part of a lode or 95 
otherwise than at the top or apex which will enable the locator to 
go beyond his lines. 

Iron Silver Co. v. Murphy, 3 Fed. 368. 

1 he burden of proof of the existence of an apex within his side 96 
lines rests on the party asserting extralateral rights. 

Carson City Co. v. North Star Co., 83 Fed. 658. 

A locator can not take mineral from the claim of another with¬ 
out showing by a preponderance of evidence that it is a part of 
the vein having its apex in his own claim. 

Cons. M'yoming Co. v. Champion Co., 63 Fed. 540. 

M here the defendants are working within their vertical lines the 
burden of proof is on the party alleging that he has an apex enti¬ 
tling him to follow the vein into defendant’s ground. 

Maloney v. King, 64 Pacific 351. 

^Vhere two veins unite on the dip, the oldest location holds the 
vein below the plane of the union. 

C'ons. ^Vyoming Co. v. Champion C\)., 63 Fed. 540. 

If tlie deposits of ore are irregular along the line of a contact 
of porphyry and limestone, a lode does not exist if the contact is 
barren of mineral or ore for any considerable distance. 

Stevens z’. A\411iams, V. S. C. C. C'olo. 

'The fact tliat the apex of a vein on its strike passes through one 
end line and one side line of the location does not cause both these 
lines to be regarded as end lines so as to destroy the parallelism, 
without which there is no right to follow the dip laterally beyond 
the boundaries of the claim. On the contrary, the owner of such 
a claim will have the right to follow the dip, within his original 
end lines, so far as he holds the outcrop within his location. 

Del Monte M. and M. Co. z\ New York, 66 Fed. 212. 

\\’hen the outcrop of a vein passes through one end line and one 
side line of a location, the locator may draw in the other end line 
to the point of intersection of the vein with the other side line and 
abandon what lies beyond; and he will then have the same extra- 


97 


98 


99 


100 


45 


lateral rights as if the claim had been so located in the first 
instance. 

Even if the locator does not actually so draw in his end lines 
and abandon what lies beyond, a new end line will be considered as 
drawn at that point, and the claim will have the extralateral 
rights as if it had been so located in the first instance. 

Tyler M. Co. v. Last Chance M. Co., 71 Fed. 848. 

Where the vein crosses one side line and departs at one end line 
the extralateral rights are bounded by the vertical plane of such 
end line and a parallel plane extended downward at the point where 
the apex leaves the side line. 

Parrot Silver and C. Co. v. Heinze, 64 Pac. 326. 

If the apex of a vein, or part of it, enters the end line of a 
claim, and then passes out through a side line, but curves back 
again into the claim and crosses its other end line, this gives the 
owners of the claim no right to any part of the apex which is 
outside of their lines. 

Waterloo v. Doe, 82 Fed. 45. 


103 


104 


Under the rule that where a lode mining claim is located across 
instead of along the vein the original side lines become end lines, 
and the end lines side lines, the owner is entitled to all the rights 
with reference to the new side lines that he would have had if they 
had originally been located as such, including the right to follow 
the dip of a vein having its apex within the surface boundaries of 
his claim, beyond the vertical plane passing through such lines. 

Empire M. and M. Co. v. Tombstone M. Co., 131 Fed. 339. 

No Extralateral Rights to Blanket Veins.—Held, that where 
the dip was upward and not downward, no justification was shown 
to extend its works and extract ore beyond its own lines. 

Gilpin V. Sierra Nevada M. Co., 2 Idaho 662. 

The presumption of ownership is that the locator or patentee 
holds everything within his vertical lines until a preponderance of 
evidence shows an exterior apex under conditions allowing it to 
invade the ground between such vertical lines. 

Duggan V. Davey, 4 Dakota 110. 


105 


106 


107 


The definition of the top or apex of a vein usually given is the 
end or edge of a vein nearest the surface. It is, indeed, difficult to 
see how any serious question could have arisen as to the practical 
meaning of the terms top or apex, but it seems in fact to have 
become somewhat clouded. I apprehend if any intelligent person 
were to point out the top or apex of a house, a spire, a tree, a hill, 


108 


46 










he would have no difficulty in doing so, and 1 do not see why the 
same common sense should not be applied to a vein or lode. 

Duggan V. Davey, 4 Dak. 110. 

1 he title to portions of a horizontal vein or deposit, generally 
called a blanket vein, may he acquired under the sections of the 
Revised Statutes concerning veins, lodes, etc. 

Iron S. M. Co. v. Mike and Starr M. Co., 143 U. S. 394. 

The law goes upon the hypothesis that all veins are more or less 
vertical in the earth. 

Iron S. M. Co. v. Murphy, 3 Fed. 368. 

If a location is made upon the top or apex of a vein the law 
gives the miner the whole of the vein wherever it may go; he may 
follow it to any depth, although in its downward course it may 
enter the land adjoining. 

Iron S. M. Co. v. Murphy, 3 Fed. 368. 

d'he top or apex is the highest end or termination of a vein, 
and this is so even though at any intermedia.te point or points where 
the vein is continuous it rises higher than such highest end, it being 
essential to such top or apex that there be no vein continuing beyond 
it. It must be the end of the vein which approaches nearest to 
the surface. 

wStevens v. Williams, U. S. C. C. Colo. 


109 


110 


111 


112 


'hhat where the dip was upward and not downward, no justifi¬ 
cation was shown to extend its works and extract ore beyond its 
own lines. 

Gilpin V. Sierra Nevada M. Co., 2 Idaho 662. 

Under the provisions of the statute giving to the locators of 
claims theretofore located any additional veins, lodes, or ledges 
existing therein, the end lines of the claim, for the purpose of 
determining extralateral rights in such additional veins, were the 
end lines of the original location and lode, and were not to be deter¬ 
mined irrespective thereof by the direction of the newly discovered 
lodes. 

Walrath v. Champion M. Co., 171 U. S. 293. 

Where a cropping on the west side of a hill inclined upwards 
from south to north at an angle of 3 deg. 26 min. and the outcrop 
of the same ledge of the north face of the hill was 8 deg. down¬ 
ward to the east, the northern exposure of the edge of the vein 
was on the line of its dip and not an apex as to allow a claim on 
its outcrop to follow the vein on its dip. 

Duggan V. Davey, 4 Dakota 110. 


113 


115 


116 


47 


'I'he servitude imposed upon the senior locator of a mining claim 
by LJnited States Revised Statutes 2336, by giving the right of way 
to the junior location, whether that extends only through the sj^ace 
of intersection of the veins or through the sjjace of intersection 
of the claims, does not otherwise affect the exclusive rights given 
the senior location, or except therefrom the cross veins apexing 
therein. * 

Calhoun Cold M. Co. v. Ajax Cold M. Co., 182 C. S. 499. 

'The ore within the space of intersection means a body of ore 
bounded by the two walls of the one lode and the two walls on 
the intersecting lode—such ore belongs to the prior locator, a right 
of way through it to the junior locator. 

Watervale M. Co. v. Leach, 33 Pac. 418. 


PI.ACERS. 

The right of possession of a placer-mining claim must be based ”'20 
on a valid location thereof in conformity with the laws of the 
United States and the requisites of a valid location of placer¬ 
mining claims are: 

'The ground sought to be located must be vacant unappropriated 
land belonging to the Covernment of the United States. 

4'he location must be marked on the ground so that its boundaries 
can be readily traced. 

And the discovery of mineral on the ground. 

A\’alton V. Wild (loose Co., 123 Fed. 209. 

'The area of a placer location is limited to twenty acres to each 
locator, but a number of individuals mav locate in common not to 
exceed one hundred and sixty acres in any one claim. 

Kirk V. Meldrum, 28 Colo. 453. 

A location of one hundred and sixty acres by eight persons is '•22 
but a single claim. 

Miller v. Chrisman, 140 Cal. 140. 

Any markings on the ground claimed by stakes and monuments ^23 
and written notices whereby the boundaries of the claim located can 
l)e readily traced is sufficient. 

M'alton M'ild (loose Co., 123 Fed. 209. 

It is not necessary that the marking of the location on tlie ground '•24 
be done by the locator in person; such marking may be done by 
the agents and employees of the locator as well as by the locator 


48 



125 


himself. Nor is it necessary that the discovery of gold be made 
by the locator in person; a discovery of gold made by any agent 
or employee of the locator or by any person acting in his behalf and 
for his benefit and if made before any intervening rights attach will 
be just as valid as if made by the locator in person. 

Id. 


It is not necessary that the acts requisite to perfect a mineral 126 
location be performed in any particular order; it is sufficient if 
they are all performed before any subsequent location is made. 

Id. 

1 he use of the names of nominal associates so as to take up one 127 
hundred and sixty instead of twenty acres of placer ground is not 
permissible, and such location is valid only to the extent of the 
twenty acres of the real party. 

Durant v. Vorbin, 94 Fed. 382. 

Three persons operating in the interest of one are limited to a 128 
single twenty acres. 

Gird V. Cal. Oil Co., 60 Fed. 531. 


When a valid location of a mining claim is once made it vests in 
a locator and his succe.ssors in interest the right of possession 
thereto, which right can not be divested by the obliteration or 
removal without the fault of the locator or his successors in interest 
of the stakes and monuments marking the boundaries, or the oblit¬ 
eration or removal from the claim of the location notice posted 
thereon. 

\\’alton V. Wild Goose Co., 123 Fed. 209. 


'Fhe law does not prescribe the particular kind of labor which 
is to be performed, nor in what it shall consist, nor the manner 
in which it shall be performed. Nor does the law require that it 
shall benefit the claim in the sense of making the claim more val¬ 
uable after the performance of the labor than before. 

Any labor performed upon the claim, if sufficient in amount, 
will satisfy the law if its tendency is to develop the claim as a 
mine. The digging of prospect holes, or the digging of a cut or 
cuts or drain ditch or ditches, the removal of brush, panning, etc., 
and all things done necessary for the doing of assessment work, 
if sufficient in amount will be compliance with the law. 

Work done for the purpose of discovering mineral, whatever the 
particular form of the deposit, is also work and improvement 
within the meaning of the statute. 

Id. 


49 


The law re(|uired $100 worth of work done upon a claim for 
the purpose of representation, and the test is as to the reasonable 
value of said work, not what was paid for it or what the contract 
price was. But it depends entirely upon whether or not the said 
work was reasonably worth the sum of $100. 

In estimating the value of labor performed there should be con¬ 
sidered the distance of the mine from the nearest point where labor 
could be procured, the cost of maintaining men while the labor was 
being performed, the current rates of wages, and any other neces¬ 
sary and reasonable expense which would reasonably and necessa¬ 
rily be incurred in the performance of the said labor. 

Id. 


A location of a placer claim on a government subdivision 
requires staking the corners of the same, as on unsurveyed land. 

\\’hite V. Lee, 78 Cal. 593. 


132 


A placer location upon a legal subdivision must be staked the 
same as if upon unsurveyed land. 

A\mrthen v. Sidway, 72 Ark. 215. 

It is not necessary to stake corners in a legal subdivision location. 
Where the notice of location calls for a legal subdivision, it is a 
sufficient notice of its boundaries and the location is distinctly 
marked on the ground by the government survey so that its bounda¬ 
ries can be readily traced, there need be no other marking of the 
boundaries. 

Kern Co. v. Crawford, 143 Cal. 298. 


A placer location gives a qualified possession of the ground 
located; that is to .say, it confers upon the owner the exclusive 
right of possession of the surface area for all purposes incident 
to the use and operation of the same as a placer-mining claim 
and all unknown lodes or v^eins, but does not give the right of pos-‘ 
session to known lodes or veins within its limits. The right to the 
possession of such lodes or veins can be acquired only by locating 
them as lode claims. 

Mt. Rosa M. Co. v. Palmer, 26 Colo. 56. 

'Phe owner of an unpatented claim, or another with his consent, '•36 
can locate a lode claim within the boundaries of a placer claim. 

McCarthy v. wSpeed, 77 N. W. 590. 

Section 2333, fixing the width of a lode claim M’ithin the bound- '•37 
aries of a placer claim at twenty-five feet on each side of the vein, 
applies not only when the lode is located by the placer claimant, 
but applies as well to others who locate a. lode within the bound¬ 
aries of a previously located placer. 

'Phe Mt. Rosa M. Co. v. Palmer, 26 Colo. 56. 


50 


here the claimant is in possession of a vein or lode included 
within the boundaries of his placer claim, the patent shall cover 
both if he makes this known and pays $5 per acre for twenty-five 
feet on each side of his vein and $2.50 per acre for the remainder 
of his placer claim. 

But where no such known vein or lode is known to exist, the 
patent for a placer claim shall carry all such veins or lodes within 
the boundaries which may be afterwards found to exist under the 
surface, but where a vein is known to exist under the surface 
included in such patent, and is in the claimant’s possession and not 
mentioned in the claim on which the patent issues, the title to such 
vein or lode remains in the United States and does not pass to the 
patentee, who thereby acquires no interest in such vein or lode. 

Reynolds v. Iron Silver M. Co., 116 U. S. 687. 


138 


The fact that a placer-mining location if made to conform as 
nearly as practicable to the system of public-land surveys and the 
rectangular subdivisions of such surveys as required by Section 2331 
of the Revised Statutes would embrace small portions of land not 
valuable for placer mining, constitutes no reason for failure to con¬ 
form the location to such system and legal subdivision, where, if 
so conformed, the land embraced in the location would be as a 
whole more valuable for placer mining than for agricultural pur¬ 
poses. 

Hogan Placer M. Claim, 34 I>. 1). 42. 


139 , 


Where the certificate of entry of a placer-mining claim describes 
the land in terms of the general public (official) survey of excluded 
mining claims, such description is sufficiently accurate therein and 
said surveys taken altogether furnish the necessary data for the 
computation of the area of the land and for the preparation of an 
accurate description to be incorporated in the patent. 

Mary Darling Placer M. Claim, 32 L. I). 64. 

A portion of an irregular legal subdivision is not sufficiently 
identified to enable the department to accurately describe the 
same in a patent by an attempted description thereof in terms of 
the public-land surveys, and where patent is sought to a placer¬ 
mining claim embracing a portion or an irregular legal subdivision 
or lot, an official survey of the particular portion claimed will be 
required. 

Chicago Placer M. Claim, 34 !>. D. 9. 


140 


141 


The smallest legal subdivision of the public surveys provided for 
by the mining laws is a subdivision of ten acres in square form; 
and such laws do not contemplate that in the location and entry 
of placer-mining claims rectangular tracts of five acres may be 
recognized and treated as legal subdivisions. 

Roman Placer M. Claim, 24 L. D. 260. 


142 


51 


143 


A placer-mining claim upon unsurveyed public land, to be valid, 
must be located upon the ground in such shape and j)osition as to 
conform as nearly as practicable to the United States system of 
public-land surveys and the rectangular subdivisions of such surveys. 

Wood Placer M. Claim, 32 L. I). 198. 

A gulch placer claim which can not, by reason of its environment, 
practicably be conformed to the system of public-land surveys and 
the rectangular subdivisions thereof, may, upon sufficient and sat¬ 
isfactory showing, be entered, if in shape and position appro.xi- 
mating such system as nearly as the conditions will reasonably 
permit. 

Wood Placer M. Co., 32 I>. D. 363. 

In all cases involving gulch placer claims, a full and explicit 
report touching the situation and scope of the claim or claims 
involved and the physical or topographical conditions surround¬ 
ing them which are relied on to bring them within the principle 
applicable to gulch placers should be required of the deputy min¬ 
eral surveyor who makes the survey, to be verified under the certifi¬ 
cate of the surveyor-general, and that such other evidence should 
be required as may in any case be deemed necessary to satisfactorily 
establish the existence of the proper and requisite conditions. 

Wood Placer M. Co., 32 L. D. 401. 

A location under the mining laws does not of itself amount to 
an appropriation of land in such a sense as to preclude inclusion of 
the same, or parts thereof, within the limits of a subsequent location 
subject to such existing rights as may be thereafter maintained 
under the prior location; and the fact that a placer location, if 
made to conform to legal subdivisions of the public surveys, would 
embrace all or a portion of the land covered by a prior location, 
is not a sufficient reason for failure to conform the placer location 
to legal subdivision. 

Rialto No. 2 Placer M. Claim, 34 L. D. 44. 

I'he fact that a portion of other claims already entered may be 
embraced in a placer location by confirming the same to legal sub¬ 
divisions does not make such conformity impracticable within the 
meaning of the Revised Statutes, inasmuch as, under the law, such 
entered claims may be excluded from patent proceedings involving 
the placer. 

Rialto No. 2 Placer M. Claim, 34 L. D. 44. 

A placer location and patent confers neither title nor right of '■‘^8 
possession to lodes and veins known to exist within its limits at the 
time patent is applied for, and a subsequent locator of such lode 
or vein is not a trespasser upon the rights of a placer locator. 

d'he Mt. Rosa M. Co. v. Palmer, 26 Colo. 56. 


52 



149 


A vein lying within tlie limits of a placer patent is not excluded 
therefrom as a known vein or lode unless at the date of the applica¬ 
tion the lode or vein was clearly ascertained, and of such an extent 
and value as to justify exploitation. 

Migeon v. Montana R. R., 77 Fed. 249. 

The existence of a lode within a placer must he actually known, 
not presumed from the character of the ground. 

Clipper Co. r. Fdi C'o., 68 Pac. 268. 

Prospector can not enter on located placer ground to search for ^51 
lodes. 

Clipper Co. v. Eli C'o., 194 U. S. 220. 

By the term placer mine, as here used, is meant ground within ”152 
defined boundaries which contains mineral in its earth, sand, or 
gravel; ground that includes valuable deposits not in place, that is, 
fixed in the rock, but which are in a loose state, and may, in most 
cases, be collected by washing or amalgamation without milling. 

U. S. V. Iron Silver CM., 128 U. S. 673. 


'PUNNEI. Sri'KS. 

Section 2323 contemplates that tunnels may be run for the devel¬ 
opment of veins or lodes, for the discovery of mines, and gives a 
right of possession of such veins or lodes if not previously known 
to exist, and makes the location of the surface after the com¬ 
mencement invalid. 

Calhoun M. Co. Ajax M. Co., 182 U. S. 499. 

'Phe location of a tunnel site for mining purposes must be made 
in subordination to prior lode claims and the tunnel has no right 
of way through them. 

Calhoun M. C'o. 7'. Ajax M. C., 182 IJ. S. 499. 

'Phe discovery of a vein in a tunnel worked according to the 
Revised Statutes, Section 2323, gives a right to the possession of 
the vein to the same extent as if discovered from the surface, and 
a location on the surface is not essential to a continuance of that 
right. 

A record of such claim in connection with the notice at the mouth 
of the tunnel under the terms of the statute gives title to the vein 
discovered without staking on the surface. 

C'ampbell v. Filet, 167 U. S. 116. 


53 



'I'he clear import of the language of the Revised Statute 2323 
is to give a tunnel owner discovering a vein in the tunnel a right 
to aj)})ropriate 1500 feet in length on that vein; which right arises 
upon the discovery of the vein in the tunnel; dates by relation 
hack to the time of the location of the tunnel site; may be exercised 
by locating the claim the full length of 1500 feet on either side of 
the tunnel or in such proportion thereof on either side as the locator 
may desire. 

Knter])rise M. Co. v. Rico Asj)en Con. M. Co., 167 U. S. 

108. 

Blind veins underneath prior lode claims belong to the surface 
location under United States Revised Statute 2322, and their dis¬ 
covery by running a tunnel, under Revised Statutes, Section 2323, 
does not give the owner of the tunnel any right to them. 

Calhoun M. Co. v. Ajax M. Co., 182 U. S. 499. 

Patents of lode mining claims based on entries made after the 
location of a claim for a tunnel site across them are subject to the 
rights of the claimant of the tunnel site in cases in which his rights 
therein were so uncertain, contingent, and intangible that they 
could not be fairly litigated when the applications for the patents 
were made. 

Uinta Co. v. Creede Co., 119 Fed. 164. 

Such rights as are conferred by a valid prior location, so long 
as it remains in full force and effect, are preserved from invasion, 
and can not be infringed upon or impaired by subsequent locations 
and are as fully protected under the rules of the common law as any 
other classes of real estate. Under the statutes the subsequent 
locator has no right to penetrate a senior valid subsisting location 
underneath its surface boundaries extended downward vertically, 
except for the purposes specified in the mining laws. We will not 
undertake to specify what these exceptions may be, but, so far as 
they are not fixed by statute, the possession and enjoyment of the 
ground underneath the .surface of a valid, subsisting location can 
not be invalid. These exceptions do not include the right to drive 
a tunnel through such a location for the purposes of discovery. 

Calhoun G. M. Co. v. Ajax G. M. Co., 27 Colo. 1 ; 
affirmed, 182 U. S. 499. 

The striking characteristic of this section of the code is that it 167 
gives the right of possession of certain veins or lodes to the diligent 
owner of a tunnel before his discovery or location of any vein 
or lode whatever, contingent only upon his subsequent discovery 
of such veins in his tunnel. 'Phis section declares that the owners 
of a tunnel, by simply locating and diligently prosecuting it, with¬ 
out the discovery of any vein or lodes within 3,000 feet from the 
face of such tunnel on the line thereof not previously known to 


54 





exist, discovered in such tunnel to the same extent as if discovered 
from the surface. 

Enterprise M. Co. Rico Aspen, 167 U. S. 108. 


MILLSITE. 

The right to a patent for a millsite under the second clause of 
Section 2337, Revised Statutes, depends upon the presence on the 
land applied for of a quartz mill or reduction works. 

Brodie Gold Reduction Co., 29 L. D. 143. 

The expenditure of $500 upon a mill site is not a condition prece¬ 
dent to obtaining a patent therefor, when the applicant is also the 
proprietor of a lode and the millsite is located in connection 
therewith. 

In such case it is only required that the mill site shall be used 
or occupied for mining or milling purposes. 

Alta Millsite, 8 L. D. 195. 

The non-mineral character of the land claimed as a millsite 
must be established. 

Alta Millsite, 8 L. D. 195. 

The use and occupancy of land for the maintenance of pumping 
works necessary to the operation of a lode mine is such a use as will 
authorize entry of the land as a millsite. 

Sierra Grande M. Co. v. Crawford, 11 L. 1). 338. 

d'he requisites of the statutes where a millsite is claimed in 
connection with a mine are: 

1. The land must be nonmineral; 

2. Noncontiguous to the lode, and 

3. Used or occupied by the proprietor of the lode for mining 
or milling purposes. 

Gold Springs and Denver City Millsite, 13 L. D. 175. 

I'he use and improvement of land for the maintenance of a 
water supply necessary to the operation of a mine is such a use 
and occupancy as will authorize a millsite entry, where the land is 
also required for the location of reduction works. 

Gold Springs and Denver City Millsite, 13 L. D. 175. 



176 


'I'he erection and maintenance in good faith of dwelling houses 
for the occupancy of workmen employed for purposes in connec¬ 
tion with a mill is such a use and occupancy of the land as will 
justify the allowance of a millsite entry thereof. 

Satisfaction Extension Millsite, 14 L. IX 173. 

Under the first clause of Section 2337, Revised Statutes, the 
owner of a patented lode may, by an independent application, 
secure a millsite if good faith is manifest and the improvements 
sufficient, and no adverse claim exists. 

Eclipse Millsite, 22 E. D. 496. 

Section 2337 of the Revised Statutes contemplates that at the time 
application is made for patent to a millsite claim the land embraced 
therein is being used or occupied for mining or milling purposes. 

Hard Cash and other millsite claims, 34 L. D. 325. 

Section 2337 does not contemplate that patent may be obtained 
for a separate millsite for each of a group of contiguous lode claims 
held and worked under a common ownership, and where more than 
one millsite is applied for in connection with a group of- lode claims 
a sufficient and satisfactory reason therefor must be shown. 

Hard Cash and other millsite claims, 34 I.. D. 325. 

A millsite can not be located upon mineral land, nor can it sub- ISO 
sequently be patented upon mineral land, whether the millsite be 
a separate application or applied for in connection with a lode. 

Cleary v. Skiffich, 28 Colo. 362. 

Subsequent discovery of mineral will not vitiate a millsite loca- 181 
tion on what was at the time considered nonmineral land. 

Id. 

Building cabin used for storing tools and ore house held suffi- 182 
dent possession for mining or milling purposes under the statute. 

Hartman v. Smith, 7 Mont. 19. 

It is a sufficient possession of a millsite claim to maintain eject- 183 
ment therefor, that its corners are marked with painted posts, as 
it is the custom in locating such millsites, and that the claimant has 
a house and stable thereon and has constructed tunnels to increase 
the how of springs and built a wagon road to his mines, thus indi¬ 
cating a present and continuous use. 

Valcalda v. Silver Peak Mines, 89 Fed., 90 Nev. 


56 


AGENT. 


'rhe law makes the discoverer the agent of those for whom he 
chose to act, and makes his act their act, regardless of whether they 
have any knowledge of it or not. 

Morton r. Salambo M. Co., 26 Cal. 463. 

Any citizen who is entitled to locate a lode on the public domain 
may perform all necessary acts of appropriation and development 
through the agency of others. 

Murley v. Ennis, 2 Colo. 300. 

An agent may locate a mining claim, but unless specially author¬ 
ized to do so can not divest his principal of the title so acquired. 

Gore 7J. McBrayer, 18 Cal. 583. 

If A in locating use the name of B, he can not sue for the claim 
in his own name; his position is that of a servant to the owner, 
and his possession the possession of the other. 

Van Valkenburg v. Huff, 1 Nev. 142. 

A relocation by an agent for himelf inures to his principal. 

Lockhart Rollins, 21 Pac. Rep. 413. 


190 


191 


192 


193 


194 


The owner of a part interest in a mining claim is a cotenant with 
the other owners; and if, without their knowledge, he procures a 
patent in his own name, he becomes a trustee for them, and equity 
will enforce the trust in their favor. 

Turner v. Sawyer, 150 U. S. 578. 

One of the cotenants of a mining claim who, on the annual 
assessment work thereon not being done, relocated the same, holds 
it as trustee for all the cotenants, notwithstanding United States 
Revised Statutes, Section 2324, providing that on a failure to 
comply with conditions as to labor and improvements, the claim 
shall be open to relocation in the same manner as if no location of 
the same had ever been made. 

McCarthy v. Speed, 11 S. D. 362. 


195 


196 


When a mining location is made by one person in his own name 
at the request and expense of, and for the benefit of, another person, 
such other person is legally entitled to the possession of the mining 
ground so located. 

The locator, in such a case, holds the legal title in trust for the 
benefit of the person at whose expense the location was made. 

Book Justice M. Co., 58 Fed. 106. 


197 


57 


198 


A party in whose name a location of a mining claim is made is 
presumed, prima facie, to assent to the same. 

Van Valkenburg v. Huff, 1 Nev. 142. 

It is not necessary that the markings of the location on the ground 
be done by the locator in person; such markings may be done by the 
agents or employees of the locator as well as by the locator himself. 
Nor is it necessary that a discovery of gold be made by the locator 
in person; a discovery of gold made by an agent or employee of the 
locator, or by any person acting in his behalf and for his benefit, 
and if made before any intervening rights attach, will be just as 
valid as if made by the locator in person. 

Walton V. Wild Goose M. Co., 123 Fed. 209. 


WATER. 

Appropriation gives a vested right to water, and all subsequent 201 
titles are subservient thereto. 

Hill V. Lenormand, 16 Pac., 266 Ariz. 

A homestead claimant’s rights to water flowing through his 202 
ground are subject to the rights of a prior appropriator. 

So. Uba Co. V. Rosa, 80 Cal. 333. 

'Phe filing of a homestead entry prevents subsequent diversion of 203 
water running across the land. 

Sturr V. Beck, 133 U. S. 541. 

'Phe right of appropriation on the Pacific Slope was established 204 
law before the passage of any Congressional act on the subject. 

Isaacs V. Barber, 38 Pac. 871. 

All uses must be beneficial. Irrigation has no precedence over 205 
mining use. 

Union Co. v. Dangberry, 81 Fed. 73. 

'Phe appropriator of water, to be used at a specified place for the 206 
purpose of operating machinery and other works, after so using and 
returning it to its original channel, can not change the place of use 
to the damage of a subsequent appropriator lower down the stream. 

Past Chance Co. v. Bunker Hill Co., 49 Fed. 430 Idaho. 


58 



The prior appropriator of a stream of water for mining purposes 207 
has a right to have the water flow down above the point of his 
appropriation without interruption or diminution in quantity. 

Phoenix \\\ Co. v. Flecher. 

I he upper mill must recognize the rights of the mills below and 209 
impound its tailings or otherwise prevent their injurious flow to 
mills below, and the lower mill must stand the consequence of such 
slight injury as the upper can not prevent. 

Otaheite Co. v. Dean, 102 Fed. 929 Nev. 


Hy the custom which has obtained among miners in the Pacific 210 
States and d'erritories where mining for the precious metals is had 
on the public lands of the United States, the first appropriator of 
mines, whether in placers, veins, or lodes, or of the waters in the 
streams of such lands for mining purposes, is held to have a better 
right than others to work the mines or use the waters. 

d'he first appropriator who subjects the property to use, or takes 
the necessary steps for that purpose, is regarded as against the gov¬ 
ernment as the source of title in all controversies relating to the 
property. As respects the use of water for mining purposes, the 
doctrines of the common law, declaratory of the rights of riparian 
owners, were at an early day after the discovery of gold found to 
be inapplicable, or applicable only in a very limited extent, to the 
necessities of miners, and inadequate to their protection. 

Atchison v. Peterson, U. S. Supreme Court 1874. 

No proprietor has the right to use the water to the prejudice 211 
of other proprietors above or below him, unless he has a prior right 
to divert it or a title to some exclusive enjoyment. 

Id. 

Hut the government being the sole proprietor of all the public 212 
lands, whether bordering on streams or otherwise, there is no occa¬ 
sion for the application of the common-law doctrine of riparian 
proprietorship with respect to the waters of those streams. 'Fhe 
government, by its silent acquiescence, assented to the general occu¬ 
pation of the public lands for mining and, to encourage their free 
and unlimited use for that purpose, reserved such lands as were 
mineral from sale and the acquisition of title by settlement. And 
he who first connects his own labor with property thus situated, and 
open to general exploration, does in natural justice acquire a bet¬ 
ter right to its use and enjoyment than others who have not given 
such labor. So the miners on the public lands throughout the 
Pacific States and Territories by their customs, usages, and regula¬ 
tions, everywhere recognized the inherent justice of this principle; 
and the principle itself was, at an early period, recognized by legis¬ 
lation and enforced by the courts in those States and Territories. 

Id. 


59 


213 


It is not absolutely essential that water should be perfectly clear 
and pure in order that it may be used for ordinary milling })urposes. 
If it were, but few mills could be operated, especially on the banks 
of mountain streams like the one in question; for the natural flow 
of the water over a sandy or loose soil would gather up more or less 
sediment, while, in the case of heavy freshets, which occur every 
spring from the melting of snow in the mountains, rocks, tailings, 
sand, and other debris will cause more or less inconvenience, detri¬ 
ment, and injury to every quartz-mill owner, whether there are any 
mills above him or not. 

Equity does not require the water to be sent away from a mill 
as pure and unadulterated as it was when it left the springs or 
creek before being used in the mill. 

'There are always more or less light substances, deleterious in their 
nature, carried in suspension flowing with the water, which only set¬ 
tles, if at all, when deposited in the settling tank or cribs, and then 
only when the water is comparatively still. Annoyance from this 
source can not be avoided. 

Otaheite M. Co. v. Dean, 102 Fed. 929. 


ALIENS. 

'The rights of a citizen locator are not affected by the fact of a 220 
colocator being an alien. 

Strickley v. Hill, 22 Utah 257. 

An alien holding title by grant can pass good title to his grantee 221 
at any time before governmental inquiry to set aside his holding. 

Id. 

Service in the army of the United States gives the alien soldier 222 
the status of one who has declared his intention to become a citizen. 

Jd. 


A deed of a mining claim by a qualified locator to an alien oper- 223 
ates as a transfer of the claim to the grantee, subject to question 
in regard to his citizenship by the government only. 

Manuel v. Wulff, 152 U. S. 505. 

Naturalization relates back. In a suit supporting an adverse 224 
claim where a party who was an alien at the outset becomes a citi¬ 
zen during the proceedings and before judgment, his disability to 
take title is thereby removed. 

Id. 


60 




225 


Stockholders of American corporations are conclusively pre¬ 
sumed to be citizens. 

Doe V. Waterloo, 70 Fed. 455. 

d'he location of a mining claim by an alien and the rights follow- 226 
ing therefrom are voidable, not void, and are free from attack by 
any one except the government. 

McKinley Creek M. Co. v. Alaska M. Co., 183 U. S. 563. 

A corporation created under the laws of one of the States and all 227 
its members citizens of the United States is competent to locate 
or join in the location of a mining claim upon the public domain 
in like manner as individual citizens. 

McKinley v. \Vheeler, 130 U. S. 630. 


Alienage is not a disability of which advantage can be taken . 228 
by a citizen in a contest with an alien. It is the office of the govern¬ 
ment only to declare a forfeiture of the alien’s estate. 

I'erritory v. Lee, 2 Montana 124. 

No distinction is made in locating mining claims on account of 229 
the sex of the locator. 

Commissioner to Eureka Land Office. 

A corporation organized under the laws of a State is a citizen 230 
and entitled to purchase and hold a mining claim. 

North Noonday Co. v. Orient Co., 1 Fed. 522. 


UNITED STATES MINERAL SURVEYOR. 

Section 452, Revised Statutes of the United States: 

“The officers, clerks, and employees in the (leneral Land ()ffice 
are prohibited from directly or indirectly purchasing or becoming 
interested in the purchase of any of the public land; and the person 
who violates this section shall forthwith be removed from office.” 

It was the intention of Congress to prohibit, on the ground of 
public policy, the officers, clerks, and employees in the general 
land office from acquiring, directly or indirectly, an interest in the 
purchase from the government of any of the public land of the 
United States. 

The act forbidding acquisition of title by such employees covers 
the case of a deputy United States mineral surveyor, and his loca¬ 
tion of a mining claim is therefore void and his conveyance of 
such title passes no title. 

Lavignino "c. Uhlig, 71 Pac. 1046 Utah. 


61 



233 


'The Honorable Secretary of the Interior, in the case of Herbert 
McMicken et al., 10 L. D. 97 and 11 L. I). 96, has decided that 
the disqualification to enter public lands contained in said section 
extends to officers, clerks, and employees in any of the branches 
of the public service under the control and supervision of the Com¬ 
missioner of the (General Land Office in the discharge of his duties 
relating to the survey and sale of public lands. 

In accordance with said decision all officers, clerks, and employees 
in the offices of the Surveyors Oeneral, the local land offices, and 
the General Land Office or any persons, wherever located, employed 
under the supervision of the Commissioner of the General Land 
Office are, during such employment, prohibited from entering or 
becoming interested, directly or indirectly, in any of the public 
lands of the United States. 

Lewis A. Goff, Commissioner, circular Sept. 15, 1890. 

Clerks in the office of the Surveyor-General are clerks or 
employees in the office of the Commissioner of the (General Land 
Office in contemplation of law, therefore, under the inhibition of 
Section 452 of the Revised Statutes, disqualified to enter public 
lands. 

Herbert McMicken et al., 11 I.. I). 96. 

Secretary Noble held that an officer, clerk, or employee in the 
office of a United States Surveyor General is an officer, clerk, or 
employee in the General Land Office within the meaning of this 
section. 

In Muller v. Coleman, 18 L. D. 394, Secretary Smith held that 
a deputy mineral surveyor is such an employee, and in the Neil 
case, 24 L. D. 393, the present secretary held that a United States 
Surveyor-General is within the inhibition so declared. 

It seems clear that its prohibitive provisions embrace a deputy 
mineral surveyor. 

Floyd V. Montgomery, 26 L. I). 122. 

A deputy mineral surveyor, while holding such office, is disquali- 236 
fied as a mineral entryman. 

Secretary Hitchcock to Commissioner, July 31, 1899. 

'Lhe surveyor is an official of the United States Government and 237 
acts in that capacity and not as an agent or attorney of the owners 
of mining claims. 

Basin M. and C. Co. v. White, 22 Mon. 147, 1899. 

Under the prohibitive provisions of Section 452, Revised Stat- 238 
utes. Surveyors-General and deputy mineral surveyors are disquali¬ 
fied as applicants for mineral land. 

Alfred Baltzell et al., 29 I.. D. 333. 


62 


239 


A timber-land entry made by an employee in the office of the 
Surveyor-General of the district in which the land is situated is 
illegal and must be canceled. 

Herbert McMicken et ah, 10 L. D. 97. 

Hxtend to officers, clerks, and employees in any of the branches 240 
of the public service under the control and supervision of the Com¬ 
missioner of the General Land Office in the discharge of his duties 
relating to the survey and sale of the public lands. 

Herbert McMicken et ah, 10 L. D. 97. 

1 his office will recommend the removal or dismissal of any of 241 
the above-named officers, clerks, or employees who shall, either for 
themselves or others, in any manner negotiate for, buy, sell, or locate 
any warrant, scrip, lieu-land selection, soldiers’ additional right, or 
any other negotiable right or claim under which an interest in 
public lands may be asserted, as well as such officers, clerks, or 
employees who shall, except in the discharge of an official duty, 
help or in any manner whatever aid or assist in any such negotia¬ 
tions, purchases, sales, or locations as may be made by others for 
speculative purposes, or who shall in any manner whatever, 
except in the discharge of an official duty, furnish any information 
to, or in any manner be in communication with, any person, firm, 
or corporation dealing in any such rights, in relation to such 
rights. 

W’hile Section 452 of the Revised Statutes does not prohibit 
the acquisition of title to the public lands of the United States 
under appropriate laws by the wives of officers, clerks, and employees 
of the Land Department, it is not deemed advisable or proper in 
the interest of good administration that they should do so. Accord¬ 
ingly such officers, clerks, and employees are advised that the appli¬ 
cation, entry, purchase, or acquisition of title, directly or indi¬ 
rectly, to any of the public lands by their wives prior to the 
separation from the service of such officers, clerks, or employees, will 
be deemed a sufficient cause upon which to base a recommendation 
for removal or dismissal from the service of the officer, clerk, or 
employee whose wife acquires or seeks to acquire title to any of 
the public lands. 

Circular from (General Land Office, May 12, 1906. 

An individual or corporation, or combination of certain named 242 
individuals or corporations can have no legal right to the exclusive 
services of a mineral surveyor who is, in contemplation of the law, 
a public officer of the Land Department of the government. 

A deputy mineral surveyor, in making the survey of a mining 
claim, is the official agent of the government, and must have no 
interest, either direct or indirect, in the ultimate issue of the case, 
and such necessary disinterestedness is incompatible and incon¬ 
sistent with a permanent contract for the exclusive professional 


63 


services of the de})uty with the owner of the claims which he 
undertakes, in the sole capacity of a deputy mineral surveyor, to 
officially survey. 

Commissioner to Surveyor-General, S. I)., March 31, 1899. 


CALIFORNIA. 

Owing to the absence of State laws on the subject, mining locations are 
governed by the United States statutes alone. 

See article Location and Record. 


WATER. 

California statute: 

Sec. 1410. The right to the use of running water flowing in a river 
or stream, or down a canyon or ravine, may be acquired by appropriation. 

Sec. 1411. The appropriation must be for some useful or beneficial 
purpose, and when the appropriator or his successor in interest ceases to 
use it for such purpose, the right ceases. 

Sec. 1412. 'Lhe person entitled to the use may change the place of 
diversion, if others are not injured by such change, and may extend the 
ditch, flume, pipe, or aqueduct by which the diversion is made to places 
beyond that where the first use was made. 

Sec. 1413. The water appropriated may be turned into the channel 
of another stream and mingled with its water, and then reclaimed; but 
in reclaiming it the water already appropriated by another must not be 
diminished. 

vSec. 1414. As between appropriators, the first in time is the first in 
right. 

Sec. 1415. A person desiring to appropriate water must post a notice, 
in writing, in a conspicuous place at the point of intended diversion, 
stating therein: 

1. 'Lhat he claims the water flowing to the extent of (giving the num¬ 
ber) inches, measured under a four-inch pressure; 

2. The purpose for which he claims it, and the place of intended use; 

3. The means by which he intends to divert it, and the size of the 
flume, ditch, pipe, or aqueduct in which he intends to divert it. A copy 
of the notice must, within ten days after it is posted, be recorded in the 
office of the recorder of the county in which it is posted. 

Sec. 1416. Within sixty days after the notice is posted the claimant 
must commence the excavation or construction of the works in which 
he intends to divert the water, and must prosecute the work diligently 
and uninterruptedly to completion unless temporarily interrupted by 
snows or rain; provided, that if the erection of a dam has been recom¬ 
mended by the California Debris Commission at or near the place where 
it is intended to divert the water, the claimant shall have sixty days after 


64 




the completion of such dam in which to commence the excavation or 
construction of the works in which he intends to divert the water. 

Sec. 1417. By “completion” is meant conducting the waters to the 
place of intended use. 

Sec. 1418. By a compliance with the above rules the claimant’s right 
to the use of the water relates back to the time the notice was posted. 

Sec. 1419. A failure to comply with such rules deprives the claimants 
of the right to the use of the water as against a subsequent claimant who 
complies therewith. 

Sec. 1420. Persons who have heretofore claimed the right to water 
and who have not constructed works in which to divert it and who have 
not diverted nor applied it to some useful purpose must, after this title 
takes effect, and within twenty days thereafter, proceed as in this title 
provided, or their right ceases. 

Sec. 1421. The recorder of each county must keep a book in which 
he must record the notices provided for in this title. 

The miners’ inch mentioned in subdivision 1 of Section 1415 amounts 
in practice to 1.2 cubic feet per minute or 1,728 cubic feet per day, and 
is sufficient in quantity to fill a tank 12 feet square at the rate of 6 inches 
per hour. 


ARIZONA. 

A lode-claim location may be made by; 

1. Discovery. 

2. At discovery erect a monument of stone 3 feet .high or a post 4 feet 
above ground, on which 

3. Post a notice containing: 

Name of the claim. 

Name or names of the locators. 

Date of the location. 

Length and width of the claim, and distance from each end to the 
discovery point. 

(leneral course of the claim. 

Its location, with reference to some natural object or permanent mon¬ 
ument. 

4. 'Vo monument the claim so its boundaries may be readily traced, 
with 6 posts, 4 inches square, 4 feet above ground, or with stone monu¬ 
ments at least 3 feet high, one at either corner of the claim and one at 
each end of the lode line. 

A period of 90 days is then allowed the locator to do the following: 

5. Record with the county recorder of the county where the claim 
is located, a copy of the location notice. 

6. Sink a discovery shaft at least 10 feet deep or deeper, showing 
mineral in place, or as an equivalent, any open cut, adit, or tunnel which 
will equal a shaft 10 feet deep and four feet wide by six feet long, and 
which shall cut mineral at a depth of 10 feet. 


65 



REr>OCATION. 


A relocation of an abandoned lode claim shall be made in accordance 
with the above provisions except that the relocator may, if he so elect, 
perform his location work by sinking the original location shaft 10 feet 
deeper than it was originally, or in case the original location work con¬ 
sisted of a tunnel or open cut, he may perform his location work by 
extending said tunnel or open cut by removing therefrom 240 cubic feet 
of rock or vein material. 


PLACER CLAIMS. 

Placer claims may be located by: 

1. Discovery. 

2. Posting on the ground claimed a location notice containing: 

Name of the claim. 

Name of the locator. 

Date of the location. 

Number of acres claimed. 

Description of the claim with reference to some natural object or per¬ 
manent monument that will identify the claim. 

3. Marking the boundaries at the corners with posts 43/^ feet long, 
4 inches square, set 1 foot in the ground, surrounded with mound of stone 
or earth, or a monument of stone at least 3 feet in height and 4 feet in 
diameter at the base. 

4. Within 60 days after the date of location, a copy of the location 
notice must be recorded in the office of the county recorder. 

No local tunnel-site laws. 


WATER. 

Any person or persons, company, or corporation shall have the right 
to appropriate any of the unappropriated waters or the surplus of flood 
waters in this terirtory for beneficial use for irrigation, mining, or manu¬ 
facturing purposes, subject to existing rights, and such person or persons, 
company, or corporation, for the purpose of making such appropriation 
of waters as herein specified, shall have the right to construct and 
maintain reservoirs, dams, canals, ditches, flumes, and any and all other 
necessary waterways. And the person or persons, company, or corporation, 
first appropriating water for the purposes herein mentioned shall always 
have the better right to the same. 


NEVADA. 

Lode-claim locations may be made by any citizen on the unappropriated 
public domain or on privately owned, unfenced, and unimproved land by: 

1. Discovery. 

2. Posting at discovery a preliminary notice of location containing: 
'The name of the lode. 


66 





The name or names of the locator or locators. 

The date of the location. 

The number of feet claimed on each side of the discovery point, and the 
width on each side at the same place. 

The general course of the vein as near as can be. 

3. Within 20 days the boundaries must be defined by marking the four 
corners and the middle of the side lines with a tree stump not less than 4 
inches in diameter 3 feet above ground, blazed and marked; or 

A rock in place with a capping of smaller stones with a similar height; or 

A post 4^4 feet long, 4 inches square, showing 4 feet above ground; or 

A stone not less than 6 inches in diameter by 18 inches in length, set 
two-thirds of its length in the top of a mound of earth or stone, 4 feet 
in diameter and 23 /^ feet in height. 

All such corners when not 4 feet in diameter at the base shall be sur¬ 
rounded with a mound of stone or earth 4 feet in diameter and 2 feet 
high, and all corners shall be so marked as to designate their respective 
corners. 

4. File with the district mining recorder, or, if in a district where 
there is none, with the county recorder, 

A substantial copy of the former or preliminary location notice with 
the addition of the date on which the boundaries of the claim were 
marked. 

This recording is not compulsory, but is allowed and tends to clear up 
the title in case of contest. 

5. Within 90 days after the date of posting the location notice, there 
must be recorded with both the district mining recorder (if there is one) 
and with the county recorder, a location certificate containing: 

The name of the lode or vein. 

The name of the locator or locators. 

The date of the location, and such a 

Description of such claim, by reference to some natural object or per¬ 
manent monument as will identify said claim. 

The number of linear feet claimed along the course of the vein each 
way from the point of discovery, with the width on each side of the center 
of the vein as near as may be. 

The dimensions and location of the discovery shaft or its equivalent, 
sunk upon the claim. 

The location and description of each corner, with the markings thereon. 

It is made a felony punishable by imprisonment in the State prison for 
any person to antedate or put any false date on any notice of location of 
a mining claim. 


RELOCATION. 

A relocation of an abandoned lode claim may be made by excavating 
a new discovery and fixing new boundaries as with a new claim, or by 
Sinking the old discovery shaft 10 feet deeper, in which case the record 
must give the depth and dimensions of the original discovery excavation 
at the date of the relocation. 


67 



It is optional whether old or new boundaries are erected. In the former 
case the old posts or monuments would have to be renewed, but in either 
case a new location stake would have to be erected. 

In any case the record should state that the whole or any part of the 
new location is abandoned property. Should, however, the locator not 
know that the claim is on an abandoned claim, then the provisions of the 
section do not apply. 


PLACER CLAIMS. 

A placer claim may be located after discovery by: 

1. Posting thereon upon a tree, rock in place, stone, post, or monu¬ 
ment, a notice of location, containing: 

Name of claim. 

Name of locator or locators. 

Date of location. 

Number of feet or acres claimed. 

2. Marking boundaries and the location point as required for lode 
claims; provided. 

Where the land has been previously subdivided by the yjublic-land sur¬ 
veys, the claim may be taken by legal subdivisions and except the location 
point, no other markings will be required. 

3. Within 90 days after the posting of the notice of location the locator 
shall perform not less than $20 worth of labor upon the claim for the 
development thereof, and shall have 

Recorded by the mining-district recorder and the county recorder of 
the district and county in which the claim is situated a certificate, which 
shall state: 

Name of the claim (designated as placer claim). 

Name of locator or locators. 

Date of location. 

Number of feet or acres claimed. 

Description of claim with regard to some natural object or permanent 
monument as will identify the claim. 

Idle kind and amount of work done by him, and the 

Place on the claim where said work was done. 


TUNNEL RIGHT. 

Tunnel location may be acquired by: 

1. Posting notice at the point of commencement of work, and must 
contain: 

Name of locator. 

Date of location. 

Proposed course of tunnel. 


68 




Height and width of proposed tunnel. 

Boundary monuments, position and character. 

2. Boundary lines must be marked by ten monuments of the same type 
and character as for lode claims, and must be placed at intervals of 300 
feet along the proposed course of the tunnel. 

3. Within 60 days of the date of location, there must be filed with the 
mining-district recorder and with the county recorder of the county and 
district where the tunnel is located, an exact copy of the location notice 
posted. 

lire statute further exacts that on the discovery of a blind vein it shall 
be marked on the surface and held in like manner as other lode claims. 

While the legality of this is questionable, it would be best to observe 
it if possible. 


MILLSITE. 

Millsites not exceeding 5 acres in extent in any form may be located by 
posting a written location notice thereon, which must contain; 

1. The name of the locator or locators. 

2. The name of the vein or lode claim of which he is the proprietor, 
or the name of the quartz mill or reduction works of which he is the 
owner. 

3. The date of the location. 

4. 'bhe number of feet or acres claimed. 

5. 'Fhe description of the claim by reference to some natural object 
or permanent monument as will identify the claim or millsite. 

6. By marking the boundaries at each corner in similar manner as pro¬ 
vided for marking the corners of (partz claims. 

7. An exact copy of this location notice shall be recorded with the 
mining-district recorder and county recorder of the district and county in 
which such location was situated, within thirty days. 


OREGON. 

A lode mining claim may be located by any citizen or one v ho had 
declared his intention to become such after discovery of mineral-bearing 
rock in place upon the unappropriated public domain of the United 

States by 

1. Posting notice thereon containing: 

'Phe name of the lode or claim. 


69 







'Fhe name of the locator or locators. 

Date of the location. 

Number of feet claimed each way from discovery. 

Width on each side of vein. 

General course of vein by reference to some natural object. 

Description of boundaries, so they may be readily traced. 

2. Within 30 days the boundaries must be marked by six substantial 
posts 4 inches or more square, not less than three feet above ground; or 

By mounds of stone, or earth and stone 2 feet or more in height, one 
at each corner and one at each end of the lode line. 

3. Within sixty days from the posting of the notice of discovery 

Sink a discovery shaft 10 feet, showing mineral in place; or, as a sub¬ 
stitute, 

A cross-cut or tunnel which cuts the lode at a depth of 10 feet; or 

An open cut at least 6 feet deep, 4 feet wide, and 10 feet in length 
along the lode where the lode is in evidence. 

4. The locator or some one for him who did work upon and has 
knowledge of the discovery excavation, shall make and attach to the copy 
of the notice of location an affidavit showing compliance with the above 
requirements. 

5. Within 60 days from the date of posting the location notice, a copy 
of the notice so posted, having attached the above affidavit of discovery 
work, shall be filed for record with the recorder of conveyances, if there 
be one, otherwise with the clerk of the county. 

But one location is allowed to be made on each lead or vein previously 
discovered, but where a new discovery is made an additional location is 
allowed the discoverer. 

No local placer laws. 

No local tunnel-site laws. 


70 





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